Spring 2005 - Victorian Bar

VICTORIAN BAR NEWS
No. 134
ISSN 0159-3285
Welcome to the
High Court of Australia,
Justice Sue Crennan
Welcomes: Justice Chris Maxwell, Justice Ashley, Justice Kim Hargrave,
Justice Betty King, Master Efthim, Judge Morrish and Judge Leckie
Farewells: The Honourable Justice Winneke AO AC and Justice John
Batt
Obituaries: Louise Crockett and Sam Duband
Trouble in Paradise
Life in the Solomons
Interview with Professor Kathy Laster
Working
Nets
The Queen v Edward “Ned” Kelly
A New Court for Victoria
2005: the Threat of Recession — 1990s Unlearned?
Mate
A Letter
from America
It’s a Fine Line Between Pleasure and Pain
SPRING 2005
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VICTORIAN BAR NEWS
No. 134
SPRING 2005
Contents
EDITORS’ BACKSHEET
5 Community Interest or Individual Rights?
CORRESPONDENCE
6 Letters to the Editors
CHAIRMAN’S CUPBOARD
9 Second Female High Court Judge in Court’s History
ATTORNEY-GENERAL’S COLUMN
11 ‘We Have Thrown Open the Process for Judicial
Appointment, Previously Subject to Secrecy
and Whim’
Welcome: Justice
Maxwell
Welcome: Justice
Ashley
Welcome: Justice
Hargrave
Welcome: Justice King
Welcome: Master
Efthim
Welcome: Judge
Morrish
Welcome: Judge
Leckie
Farewell: The
Honourable Justice
Winneke AO AC
Farewell: Justice Batt
LEGAL PRACTITIONERS’ LIABILITY
COMMITTEE
13 Bar Defence
WELCOMES
15 Justice Chris Maxwell
16 Justice Ashley
17 Justice Kim Hargrave
18 Justice Betty King
19 Master Efthim
20 Judge Morrish
21 Judge Leckie
FAREWELLS
23 The Honourable Justice Winneke AO AC
26 Justice John Batt
OBITUARIES
28 Louise Crockett
29 Sam Duband
NEWS AND VIEWS
31 Trouble in Paradise
34 Life in the Solomons
39 Interview with Professor Kathy Laster
43 Working Nets
44 The Queen v Edward “Ned” Kelly
45 The Essoign Wine Report
46 A New Court for Victoria
49 2005: the Threat of Recession — 1990s Unlearned?
52 A Bit About Words/Mate
53 Verbatim
54 A Letter from America
SPORT/FOOTBALL
57 It’s a Fine Line Between Pleasure and Pain
LAWYER’S BOOKSHELF
59 Books Reviewed
Life in the Solomons
Cover: Justice Sue Crennan welcomed on her
appointment to the High Court of Australia —
see pages 6 and 9.
The Queen v Edward “Ned” Kelly
A New Court for Victoria
3
Victorian Bar Council
VICTORIAN BAR COUNCIL
for the year 2005/2006
Chairs of Standing Committees of the Bar Council
G
Clerks:
B *McMillan S.C., Ms C.F. (Chairman)
A *Shand QC, M.W. (Senior Vice-Chairman)
F *Dreyfus QC, M.A. (Junior Vice-Chairman)
B *Ray QC, W.R. (Chairman)
D *Fajgenbaum QC, J.I.
G *Digby QC, G.J.
F *Dunn QC, P.A.
G *Colbran QC, M.J.
G *Lacava S.C., P.G.
D *Beach S.C., D.F.R. (Honorary Treasurer)
D *Riordan S.C., P.J.
D *McLeod S.C., Ms F.M.
D *Jones, I.R.
G *Judd, Ms K.E.
D *Alstergren, W.E..
W *Neal D.J.
R *Doyle, Ms R.M.
L
Hannebery, P.J. (Assistant Honorary Treasurer)
R *Fairfield, C.G.
D *Shaw, C.E.
D *Burns, A.G.
S *Powderly, Ms L.M.
G *Anderson, Ms K.J.D. (Honorary Secretary)
G *Neskovcin, Ms P.A. (Assistant Honorary Secretary)
Ethics Committee
G Lacava S.C., P.G. (Chairman)
H Merralls AM, QC, J.D.
C Meagher ED, QC, D.R.
S
Willee RFD, QC, P.A.
S
Lally QC, W.F.
F Gobbo QC, J.H.
A Macaulay S.C., C.C.
G Gordon S.C., Ms M.M.
R Batten, J.L.
P Williams, I.S.
D Kirton, Ms C.E.
L
Lane, D.J.
F Shiff, Ms P.L.
D Duggan, Ms A.E.
VICTORIAN BAR NEWS
Editors
Gerard Nash QC, Paul Elliott QC and
Judy Benson
Editorial Board
Julian Burnside QC
Graeme Thompson
Editorial Consultant
David Wilken
Editorial Committee
John Kaufman QC, William F. Gillies,
Carolyn Sparke, Georgina Schoff,
4
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B
G
D
A
G
D
A
G
B
B
G
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D
S
B
Aboriginal Law Students Mentoring Committee
Golvan S.C., C.D.
Applications Review Committee
Digby QC, G.J.
Charitable and Sporting Donations Committee
Riordan S.C., P.J.
Conciliators for Sexual Harassment and Vilification
Curtain QC, D.E.
Counsel Committee
Crennan S.C., M.J.
Editorial Committee for In Brief and Website News
Section
McLeod S.C., Ms F.M.
Equality Before the Law Committee
Richards QC, Ms A.
Ethics Committee
Lacava S.C., P.G.
Human Rights Committee
Fajgenbaum QC, J.I.
Legal Assistance Committee
Macaw QC, R.C.
Readers’ Course Committee
Santamaria S.C., P.D.
Continuing Legal Education Committee
Young QC, N.J.
Accreditation and Dispensation Sub-Committee
Young QC, N.J.
New Barristers’ Standing Committee
Bingham, Ms S.L.
Past Practising Chairmen’s Committee
Berkeley QC, H.C.
Professional Indemnity Insurance Committee
Riordan S.C., P.J.
Professional Standards Education Committee
Willee RFD, QC, P.A.
Victorian Bar Dispute Resolution Committee
Levin QC, D.S.
Paul Duggan, Peter A. Clarke,
Victoria Lambropoulos, Richard Brear
(Editorial Assistant) and Peter Lithgow
(Book Reviews)
David Johns (Photography)
Published by The Victorian Bar Inc.
Owen Dixon Chambers,
205 William Street, Melbourne 3000.
Registration No. A 0034304 S
Opinions expressed are not necessarily
those of the Bar Council or the Bar or
of any person other than the author.
Printed by: Impact Printing
69–79 Fallon Street,
Brunswick Vic. 3056
This publication may be cited as
(2004) 134 Vic B.N.
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Editors’ Backsheet
Community Interest or
Individual Rights?
BIG BROTHER
HOSE of us who have teenage
children are familiar with a television program called “Big Brother”.
It is a program that probably represents
the worst example of “reality” television.
Strangers are put in a house together;
their every move is captured on television
and their every word is recorded. When
Big Brother gives them directions they
are required to comply immediately. They
are in fact guinea pigs, who react to their
master’s every command but between
commands may do as they like.
As the hand of government obtrudes
more and more into every facet of life,
we seem to have a clear move towards
big government throughout the whole
western world. At the same time, like
our look-alikes in the television show, our
behaviour is more and more uninhibited.
Personal responsibility and responsibility for self disappear in the television
program. Provided one does what one is
told, one can do what one likes on camera
and off (although there appears to be no
“off camera”).
Our real society is moving more and
more towards this picture. Individuals,
provided they comply with the law, are
uninhibited in their behaviour. However,
the inhibitions created by the law and the
supervision by the law are increasing. The
community comes ahead of the individual.
The freedom of the individual, insofar as it
may conflict with the interest of the community — or the perceived interest of the
community — is to be curtailed. The community is, we are told, more important
than the sum of its parts.
T
A CHANGING ENVIRONMENT
In the early 1960s, when the Victorian
government proposed to introduce compulsory breath testing for motorists, the
Bar Council under the Chairmanship of Sir
Murray McInerney opposed the proposed
legislation, on the ground that it infringed
the common law right of the individual
not to incriminate himself. Today most
members of the community would sneer
at such opposition. In the community view
the danger of “drunk drivers” to others
and to themselves clearly requires compulsory breath testing. The danger to the
community represented by drunk drivers
is accepted as justifying the clear interference with what was once considered to be
a common law right.
More recently, in the 1970s, the Federal
government introduced retrospective
criminal legislation to deal with the evil
of “bottom of the harbour” tax schemes.
This was a drastic infringement of fundamental rights. It involved an acceptance
of the proposition that a person could be
prosecuted and punished for doing
something which, at the time at which it
was done, did not constitute a criminal
offence. The justification was found in
the fact that “bottom of the harbour” tax
schemes were clearly morally dishonest
and people involved in those schemes
did not “deserve” to be protected. What
There is a need to protect
the community and the
individuals who make up
our community from the
threat of terrorism.
they were doing was damaging to the
community.
It is many years since Lord Denning
said that there was no such offence as
“being wanted for questioning”. But in
Australia today, and in England for some
time, detention for questioning is permitted. It may be that in Australia such
detention is limited to people who it is
believed may have information in relation
to possible terrorist activity, but nonetheless the power exists.
When George Orwell wrote Nineteen
Eighty Four and when Aldous Huxley
wrote A Brave New World, both contemplated a world in the distant future where
the state catered to the needs of the individual and at the same time stripped him
or her of any unique individuality.
WHAT IS NECESSARY?
There is a need to protect the community
and the individuals who make up our community from the threat of terrorism. But
we should be careful that in defending
freedom we do not abolish it.
A little over two decades ago one of the
editors visited Uruguay, then in the control of a military junta. He spoke with the
director of internal security, who acknowledged that strong measures were being
taken against dissidents in Uruguay, but
5
Letters to the Editors
he pointed out that these people were terrorists who wished to “destroy the whole
fabric of our society”.
On the question of torture of persons
detained in custody, the director said that
he was opposed to “all unnecessary torture”. The conversation that followed elicited the fact that torture was “necessary”
only: (a) where the prisoner was guilty
and had not confessed; or (b) where the
prisoner had information needed by the
authorities and which the prisoner had
not disclosed.
LIFE SENTENCE
On 20 August 2005 His Honour Judge
Higgins completed 20 years’ service as
a Judge of the County Court. There is,
moreover, no evidence that he is about to
be released on parole.
Although we tend to miss milestones in
this column, this was one we could not let
pass without comment. His Honour, was,
we believe, the first solicitor appointed to
judicial office. We wish His Honour well for
the rest of his sentence.
When His Honour is finally released
from custody, it will be a significant loss
to the legal system and to the Victorian
community. His 20 years on the Bench
have revealed an unassuming man of high
intellect, precise language, strong compassion and intellectual integrity, who has
worked assiduously to protect those who
are unable to protect themselves.
WELCOME JUSTICE CRENNAN
The appointment has just been announced
of Sue Crennan, a former Chairman of
the Bar Council, as the replacement for
Justice McHugh on the High Court of
Australia. This news comes as Bar News
goes to press.
Bar News welcomes the appointment with delight. Her Honour has been
described in one of the newspapers as a
“renaissance woman”. There is certainly
a clear basis for this assertion. More
fundamentally, however, she is a lawyer,
barrister and judge who has made her
way through the profession on the basis
of her own skills and ability. At no time
in her career has she acceded to the view
that there should be some form of affirmative action to assist her. She has done it
on her merits and those merits are first
class.
We welcome your appointment renaissance woman, former Chairman, colleague
and friend.
We will say more about this appointment in the next issue.
The Editors
6
M.’s More Wit Plea
Dear Editors,
H
OW could you allow the august
Editors’ Backsheet to repeat the
appalling prosecutorial malapropism that
appeared at the bottom of page 5 of the
Winter 2005 Edition of the Bar News?
Mayhem may indeed be ensured if such
poor standards of English usage are
allowed to prevail.
Having been given this opportunity
to castigate you I feel the need to raise
a concern that has been simmering for
some time. Why is the Magistrates’ Court
no longer funny? I cannot recall the last
time your “Verbatim” column contained
any reference to magisterial wit. Are we
on the bench so cowed by the necessity
to mind our Ps and Qs that any trace
of humour has been banished from our
courts? Is it that your correspondents
are now such venerable grey-beards that
they never descend further down from
their Olympian heights than the County
Court? Or are proceedings in our courts
simply so dull and grey (no pun intended)
that no examples of amusing repartee are
to be heard?
Whilst it may be unrealistic in these
times to expect the replication of the
robust humour of a Darcy Dugan or
a Brian Clothier, or the sophisticated
drollery of a Pat Street, I find it hard to
accept that our court, which is by far
the busiest in the State, is so boring and
lifeless that “bon mots” are never to be
discerned.
Or maybe I’m just being a grumpy old
M.
Yours faithfully,
Jon Klestadt, M.
Perceived Sexism and
Censorship
Dear Editors
T
HAT a double entendre in a speech at
this year’s Bar Dinner should invoke
such reaction confirms that the profession
has its priorities in order. Perhaps a subcommittee of Bar Council members could
be assembled to ensure that there is no
future repetition of this outrage.
The plight of David Hicks, the merits of
a battered wife syndrome defence and the
erosion of rights of suspects in a climate
of terrorism concern ought rightly be secondary to “The Thin End of the Wedge,”
as opined by Alexandra Richards QC in
the Winter 2005 edition of Victorian Bar
News.
I doubt whether I will be able to take
my repose tonight such is my distress at
the treatment of the female barrister destined to eat her “sangers” alone in chambers whilst her male colleagues regularly
feasted at her exclusion.
Glib generalizations pertaining to the
deficiencies of male members of the Bar
does little to promote the cause promoted
by Richards. I neither need nor appreciate being preached to and I find allegedly
stereotypical anecdotes of sexism said to
be perpetrated by my gender to be trite.
No woman should be discriminated
against in any way in any pursuit of her
professional career. Let it not be forgotten that some women, like men, are
devoid of talent, wit, intelligence or skill.
It is imperative that should such women
flounder at the Bar, that this outcome not
be lamely explained away as being due to
sexist reasons.
The very many women with whom I
have regular contact at the Bar are rarely
(if ever) troubled by the issues raised by
Richards. If anything, they are appalled by
much of the “obiter” for there is seldom
a “ratio” for the whining of their sexual
brethren (sic). Rightly, they seek equality
of opportunity for all and regard based on
merit and worth.
Any historical acts or attitudes which
meant that women did not receive the
recognition or appointments which they
deserved can never be justified. The
indubitable sins of the past must never
be repeated. They are not eradicated by
excessive recognition or appointments
inconsistent with ability and experience.
Such conduct is gratuitous, transparent,
unjustifiable and insulting to women.
In the context of appointment to judicial office there is little doubt that for
some years now the horizon has changed.
It is good that there are now more female
judicial officers. I fear that such appointments have not always been based on
merit. An honest analysis of a number of
female appointments results in the inescapable conclusion that they have been
made in an attempt to redress “the sins of
the past”. Such an attitude is acceptable
if the decision to be made is in regard to
two candidates of equal worth but different gender. In those circumstances it is
appropriate that the female candidate be
selected ahead of the male.
There is much about the latest edition
of the Victorian Bar News which troubles me. I am troubled that the editors
of this fine publication saw fit to “censor”
Mr Junior Silk’s speech. I am aware that
one segment of the speech was deemed
offensive by and caused distress to Her
Honour Judge Hampel. It goes without
saying that Elliot S.C. meant no such
offence or distress to Her Honour. From
what I can gather (as I was not present)
the comments were neither obscene nor
unlawful.
In a profession which makes a habit of
“kowtowing” to members of the judiciary I
find it regrettable that the editors did not
deem it necessary that the members of the
Bar be allowed to make their own assessment of the speech. Had the aggrieved
party been a seemingly less important
member of the profession would there
have been such vetting of the speech? I
doubt it and I regret that we are not sufficiently robust as to be allowed to exercise
freedom of judgment and analysis.
For this issue to be the springboard
for the partisan indulgence engaged in
by Richards’ article is unnecessary and
excessive.
In many forms of endeavor and life the
views of the “silent majority” are often
ignored. On this occasion I believe the
“silent majority” is almost all of the able,
stable and fine women who comprise
the Bar, whose counsel, intellect, good
humour and judgment I treasure and
value immensely.
Is it not about time that we cease to
create issues out of non issues and ensure
that all members of the Bar, regardless of
gender be treated with the dignity and
respect they deserve. Richards’ article
serves no such purpose. Sexist barristers
will be neither edified nor converted. Non
sexist barristers may well find it lecturing
in nature and so obvious as to compel
little more than passing and dismissive
attention.
Geoffrey Steward
Banger
Dear Editors
Y
OU assert that Queen Victoria directed
that diners were to remain seated
when the loyal toast was proposed in ward
rooms (p.28 [2004] VBN). With respect,
it was her uncle, King William IV (1765–
1837), the “sailor king”, who so decreed.
He was succeeded by Victoria. After
entering the Royal Navy in 1779 William
was rapidly promoted to Admiral of the
Fleet and the office of Lord High Admiral
was revived for him. The “stay seated”
direction was the result of his banging his
head (involuntarily) on ward room ceilings when toasting his niece.
Splice the mainbrace!
Roy Roebuck
Esprit de Corps
Dear Editors,
S
OME weeks ago, I attended the funeral
of Louise Crockett. Naturally, the
church was full. Given the esteem in which
she and Andrew (and, of course, Louise’s
father) are held by their friends and colleagues in the law, it was of no surprise
that many lawyers were present, most of
whom were and are members of this Bar
(in its various divisions). Obviously a time
for Louise’s family and her many friends,
the funeral was also an occasion for the
true expression of the collegiate nature
of the Bar and of the profession generally.
If the Bar is to have an esprit de corps
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7
which is more than the economies of
scale of accommodation and clerking then
the gathering of those to say goodbye to
Louise is good evidence that that can and
does exist.
Andrew Donald
A Singular Decision on a
Plural Subject
Dear Editors,
I
T was with great interest that I read the
debate on whether the word variety
took a singular or a plural verb.
This subject became of legal interest recently when I was presiding in an
administrative law proceeding. The matter was to do with a planning application
to build a house on a cliff.
This raised a variety of issues.
Considerable legal thought went into the
question of whether variety was singular
or plural. It was suggested that variety
was a collective noun, whether a class collective, which is singular, or a distributive
collective, which is plural, or a generalising collective, which is usually plural, or
a group collective, which can be singular
or plural.
To save much legal argument, I
decided to treat variety as I would the
noun number. Thus where many is meant
or intended, then the noun is plural and
takes a plural verb. But where it refers to
a numerical figure only, it is singular.
Accordingly, for a variety of reasons I
ruled (admittedly only as obiter dictum)
that variety was plural and took a plural verb. The case is Clarke v Minister
for Land and Environment N.I. [2005]
A.R.T. 4 of 2004.
Yours sincerely,
quite clear, i.e. the Junior shall diligently
attend to all matters and if lucky the
Silk will come along on the hearing day.
However, the following can be noted:
(a) From a Junior Counsel perspective
there is no more satisfying experience than seeing your Silk turn up.
(b) If the Silk doesn’t turn up then there
is no fee ride, (indeed there is probably no ride at all). If he does turn up,
say thank you and go along for the
ride.
(c) Sure the Junior is to give detailed
consideration, but don’t tell the Silk
because he may very well bugger off
to the Local Court to do that oh so
rewarding plea (financially rewarding!).
(d) Silk will always give careful consideration to the views of the Junior, but
the Junior should keep in mind what
happened at (c) above.
(e) It is important for the Junior to show
loyalty and mutual support to the
Silk, otherwise he might not front or
at the very least forget he is God. The
last thing a Junior needs is a Silk with
an identity crisis.
Joint written advices are the best way
for a Junior to improve their grammar,
because the Silk usually does little else
other than demonstrate that at Geelong
Grammar six does not equal half a dozen.
Pannam QC, however, omitted the following considerations:
(a) The Junior should always read and
consider instructions because the
Silk won’t.
(b) The Junior should always read and
consider the relevant statutory provisions, because the Silk won’t.
(c) The Junior should always contact his
Silk to advise him of the imminent
arrival of the advice that both are to
John Walsh of Brannagh Senior Member
Administrative Review Tribunal
Norfolk Island
8
Unsigned (for fear of reprisal in the form
of Junior Brief to appear on speculative
Special Leave application for a minor
whippy before Heydon J — don’t bank on
the Silk fronting for that one.)
Offer valid with Victorian Bar Association Card
Dear Editors
REAT article but there is a harsh reality that Pannam QC has overlooked:
Stuff is very much in vogue, particularly if you enjoy supporting the poor and
downtrodden Columbian crop owner.
The legal relationship between Silk and
Junior may be a matter of conjecture, the
practical and professional relationship is
Yours anonymously,
10% off
when you spend $50 or
more
Of Stuff and Silk: the
Harsh Reality
G
give, less grammatical correction, so
the Silk can prepare his fee note in
good conscience.
Marking up authorities and case
searches are very important tasks for a
Junior. But the Junior must never give
these documents to the Silk before the
hearing, otherwise they will be lost in the
black hole known as Silk’s chambers. Even
at the Bar Table keep a copy because it
seems this black hole follows thy silken
gown. (Copperfield has nothing on some
Silks!)
Assistance by the Junior during argument, made unobtrusively and by note will
always be ignored. If the Junior has a good
point he should feign illness, adjourn and
put it in written submissions.
Outlines of argument should always be
in draft form; because whatever thought
process the Junior had the Silk will
change.
The Junior should closely follow crossexamination by the Silk so as to ensure
that morning tea and lunch breaks are
closely observed.
General: The Junior counsel should
expect the following:
(a) The Silk won’t front.
(b) If the Silk does front he hasn’t read
the brief.
(c ) If the Silk has read the brief then his
views will not be your views.
(d) If you beg to differ with the Silk’s
views he will bounce you. Just as the
good Pannam QC did to his forlorn
Junior in the Federal Court.
Discount applies to RRP only
Discount applies to RRP only
wriggle in for
a great read
Bookworm Books
ABN 79 318 822 994
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Melbourne, Victoria 3000 Australia
T: (03) 9600 4674
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W: bookwormbooks.com.au
Chairman’s Cupboard
Second Female High Court
Judge in Court’s History
JUSTICE SUSAN CRENNAN
N my first week as Chairman, I was
delighted that my first official task was
to comment on the appointment of
Justice Susan Crennan as a Justice of the
High Court of Australia after her appointment was announced by the AttorneyGeneral, Philip Ruddock. Justice Crennan
will be the second female High Court
judge in the history of the High Court. Her
appointment also means that, together
with Justice Ken Hayne, Victoria now has
two “home grown” representatives on the
High Court.
Justice Crennan was a distinguished
and formidable practising member of
this Bar for approximately 24 years and
an outstanding leader at this Bar, having been the Chairman of the Victorian
Bar in 1993–1994 and President of the
Australian Bar Association in 1994–1995.
The Bar warmly welcomes the appointment of Justice Crennan.
John Digby QC, Michael Colbran QC,
Fiona McLeod S.C., Kerri Judd, William
Alstergren, Anthony Burns and Liza
Powderly. I congratulate and welcome
the newly elected councillors and I look
forward to working with them in the next
twelve months.
I
LAST YEAR’S BAR COUNCIL
I thank the previous Bar Council for its
work over the past year. The immediate
past Chairman of the Bar Council, Ross
Ray QC, served as a councillor for the past
thirteen years and brought many years
of experience to the task of Chairman.
During his term as Chairman, the Bar
commenced its first year of insuring its
barristers with the Legal Practitioners
Liability Committee. On behalf of all
members of the Bar, I thank Ross for his
long period of service to the Bar and his
contribution at every level.
The Bar is fortunate to be able to
conduct its professional indemnity insurance with such an experienced and successful organisation. The Bar will always
be indebted to Michael Shand QC for his
huge commitment on the insurance issues
arising over many years and for his work
in ensuring that the Bar’s new insurance
regime proceeded smoothly and efficiently.
Other members of last year’s Bar
Council not returning to the new Council
are Michael Crennan SC (who served for
three years); Michelle Quigley S.C. (who
served for three years); Anne Duggan
(who served for three years); Kim
Knights (who served for two years); Paul
Connor (who served for two years) and
Christopher Townshend (who served for
one year). Each of these Bar Councillors
made significant contributions to the work
of the Bar Council, particularly Michael
Crennan S.C. who served as Chairman
of the Counsel Committee and Michelle
Quigley S.C. who, for two years, served as
Assistant Honorary Treasurer.
THIS YEAR’S BAR COUNCIL
In the recent elections, there were seven
new members elected to the Bar Council:
The Bar will always be
indebted to Michael
Shand QC for his huge
commitment on the
insurance issues arising
over many years.
THE HONORARY SECRETARY AND
ASSISTANT HONORARY SECRETARY
This year, the Bar is most fortunate that
Kate Anderson and Penny Neskovcin have
agreed to continue their appointments
as Honorary Secretary and Assistant
Honorary Secretary respectively of the
Bar Council. As in most positions of a voluntary nature, the work involved is time
consuming and thankless. During the past
year, these two barristers have undertaken
the work involved in these positions with
great patience and fortitude. On behalf of
the Bar, I thank them for their enormous
contribution to date and I am extremely
grateful that I will continue to work with
them again this year.
LEGAL PROFESSION ACT 2004 AND
THE ETHICS COMMITTEE
The Victorian Attorney-General, Mr Rob
Hulls, recently announced the appointment of Ms Victoria Marles as Legal
Services Commissioner under the Legal
Profession Act 2004 (“the 2004 Act”).
The Attorney General also announced
that the 2004 Act would commence on 12
December 2005. The extent of the Bar’s
role in the disciplinary regime under the
2004 Act is yet to be known. Investigative
power rests with the Commissioner. The
2004 Act also provides for her to refer
the investigation of complaints to the Bar.
More knowledge will be gained by the Bar
after consultation with Ms Marles.
Of critical importance to the Bar is the
role of the Ethics Committee. The major
role of the Ethics Committee is to give rulings and guidance to its members. At the
moment, rulings and guidance are given
daily by the members of the Committee
on a 24-hour, seven-days-per-week basis
9
to its members. Clients and barristers
need to know that the ruling given by the
Committee is correct and that whatever
information is confided in the course of
requesting the ruling is absolutely confidential to the members of the Committee.
Most importantly, in the event that a conduct complaint is made against a barrister,
the barrister needs to be assured that he
or she is able to rely on the ruling of the
Committee in answering to the conduct
complaint. This critical issue is not specifically addressed in the 2004 Act
Until the role of the Ethics Committee
in the disciplinary regime for barristers
is determined, it is difficult to know
whether the Committee will continue
to give the rulings and guidance it has
given in the past. If the Committee does
continue to give the rulings and guidance
to its members, the status of the rulings
and guidance would need to be determined.
ABORIGINAL LAW STUDENTS
MENTORING COMMITTEE
Since 1999, the Bar has had close ties with
the indigenous legal community through
its mentoring program. Victorian universities now have about 30 Aboriginal law
students from all over Australia — many
of them in distance learning courses. A
number of these students participate in
the Bar’s mentoring program.
Justice Stephen Kaye chaired the
Bar’s Aboriginal Law Students Mentoring
Committee (“ALSMC”) from its inception
until his appointment to the Supreme
Court. Colin Golvan S.C. is now the
Chairman of the ALSMC.
Last year, under Colin’s reign, the
ALSMC determined to extend its work in
promoting careers at the Bar to Aboriginal
law students by setting up an Aboriginal
Barristers Fund to provide financial assistance to Aboriginal law graduates inter-
10
ested in coming to the Bar. The ALSMC
was successful in obtaining approval
from the Victorian Law Foundation for a
seed grant of $25,000 to help set up the
Aboriginal Barristers Fund and to provide
a small initial corpus for the Fund. The
ALSMC is working to establish the Fund.
It hopes to be able to offer tax deductible
status for donations through the Victorian
Justice Stephen Kaye
chaired the Bar’s
Aboriginal Law Students
Mentoring Committee
(“ALSMC”) from its
inception … Colin Golvan
S.C. is now the Chairman
of the ALSMC.
Law Foundation with a committee of management appointed by the Bar Council.
Support for the Fund will be sought from
members of the Bar as well as from foundations and corporations.
The Victorian Bar has not had an indigenous practising member for over 20 years
when Mr Mick Dodson was last in practice. Mr Dodson is now a Professor at the
National Centre for Indigenous Studies at
the Australian National University and he
remains a member of the Victorian Bar on
the Academics List.
Currently, the Bar has received
and accepted an application from one
Aboriginal solicitor to undertake the
Readers’ Course in March 2006. The Bar
has also received a second application
from another Aboriginal solicitor for the
September 2006 Readers’ Course.
LEGAL AID
Legal Aid brief fees on pleas in summary
criminal matters have not increased — in
some cases, the fees are less than what
was being paid more than 10 years ago. In
1993 and 1994, junior counsel of less than
two years’ seniority were being briefed
in legal aid Magistrates’ Court summary
crime and Children’s Court pleas at fees
of $300, $290 and $294, with less serious
matters at $244. The new legal aid scale
brief fee for appearances in summary
crime pleas introduced in 2003 is $285
— and that remains the scale today.
For years, the Bar has been working to
remedy the situation. Despite that work
including public demonstrations over the
years, the scales for costs in summary
crime have only increased modestly. The
Bar will continue to pursue this issue and,
to this end, a specialised group of the
Bar Council comprising Philip Dunn QC,
Paul Lacava S.C., David Neal and Justin
Hannebery have met and will continue to
meet with Victoria Legal Aid and the Law
Institute of Victoria to pursue the Bar’s
objectives of attaining proper increases in
legal aid fees for its members.
THE YEAR AHEAD
I am looking forward to working with all
of the members of the Bar Council for
the next twelve months. The seven new
members will soon understand the current issues before the Bar Council and
the thirteen more experienced members
provide a wealth of knowledge that has
been harnessed and will continue to be
harnessed in the future. It remains to say
that if any member of the Bar has a query
or wishes to raise any issue with the Bar
Council, he or she should not hesitate to
contact any one of the members of the
Bar Council.
Kate McMillan S.C.
Chairman
Attorney-General’s Column
‘We Have Thrown Open
the Process for Judicial
Appointment, Previously
Subject to Secrecy and
Whim’
O
NE of the greatest privileges and
the greatest challenges I have
faced in my six years as Victoria’s
Attorney-General is the process of judicial
appointments. Because I want the community to benefit from the best and the
brightest on their judicial benches, I take
this responsibility enormously seriously.
I have been increasingly puzzled and
frustrated, therefore, at the reluctance in
some corners, and the sheer obstruction
in others, to accept the mantle of judicial
office, or to broaden the pool of candidates
upon whom this mantle is bestowed.
Without a doubt, one of the most insidious obstacles was the lingering paradigm
that left women outside the assumed
parameters of judicial office. Seemingly
benign, a deft sleight of conservative hand
had used that deceptive term “merit” to
exclude, rather than include, women.
From Harry Gibbs to Phillip Ruddock, we
hear the gloriously straightfaced assertion that “we shall not be appointing a
woman, we shall be making an appointment on the basis of merit”. This is disguised as an appeal to objectivity — to
the sober requirements of legal discipline
— employed as an excuse not to appoint
candidates for whom Australia’s benches
have been crying out.
With a complete absence of irony, this
same appeal to impartiality is wielded to
maintain the status quo — to perpetuate
the myth that the law, as a profession
and as a mechanism of state, is a valuefree zone, rather than the harbourer of
privilege that we know it to have been.
This fiction is the same one responsible
for countless injustices in the law, and has
kept that tired little man going round and
round on the Clapham omnibus, depriving
him of the fare to get out and see a wider
world.
Well, it’s my hope that, in Victoria, we
have reclaimed that word “merit” for a
better legal system. It’s my hope that we
have turned the dichotomy on its head,
revealing the truth that “merit” includes,
rather than excludes women, and instead
prohibits homogeneity for homogeneity’s
sake.
I hope that, in Victoria, the legal culture has changed — and has done so
irrevocably. This does not mean, by any
stretch of the imagination, that there are
not pockets of the profession that do not
hanker for days gone by or that are not
dragging their feet. However, it’s my hope
that the momentum is irreversible. The
face of the Victorian judiciary is gradually
transforming and, as it does so, the law
and the community are the beneficiaries.
This transformation has only been possible, however, because we have thrown
open the process for judicial appointment,
previously so subject to secrecy and whim.
When I first came to office, I was shocked
at how limited the channels for consultation were. A brief conversation, a list at
best, from the head of each jurisdiction
was hardly going to reflect the breadth of
candidates out there, no matter the many
good intentions.
I had to change the way in which
appointments were made — I had to
make sure I was made aware of every
potential appointment if I were to ensure
that Victoria profited from the best and
the brightest that the law had to offer.
This is why I changed the process. This is
why I threw the doors open and started to
consult widely. This is why I advertised for
expressions of interest, why I spelled out,
for the profession and for the community,
the criteria on which appointments were
likely to be made.
It’s my hope that, in changing the culture in which judicial appointments are
made, in throwing the doors open and
being frank about my desire to secure
both the best and the brightest and a
judiciary that reflects the community
it serves, we have sparked an impetus
that cannot be reversed. Nevertheless,
securing the current number of women
on Victoria’s Bench has not been an easy
task, the judiciary holding little appeal for
many women who are looking for financial
11
security or flexible conditions. Many candidates I approach have been reluctant to
abandon hard-won practices or work regimens that have allowed them to balance
their professional and personal commitments. Similarly, other potential candidates — both men and women — have
been hesitant to forsake the freedom,
diversity and collegiality of their existing
careers for the perceived constraints of
the Bench.
This is why I am so determined to shake
up the expectations about judicial office
that, let’s face it, have made it the bastion
of privileged men — those who have had
no financial trouble going through Law
School and building a practice; those free
to pursue their professional life because
there was a woman looking after hearth
and home; those who were not expected
to take primary responsibility for children;
those for whom the law has been a linear
trajectory with no detours. Consequently,
I asked the JRT to examine judicial working conditions with a view to creating
greater certainty and encouraging more
flexibility in the workplace.
More controversially, it seems, this is
also why I pushed on with creating the
office of permanent part-time Magistrate,
as well as expanding the use of acting
judges. Let me say, I firmly believe that
these reforms are necessary, that they will
expand the pool of talented candidates for
judicial office in a way that can only benefit the legal system and community. It is
not only practitioners with young families
to whom this should appeal, but others
who may find full-time office unattractive
because of disability, study commitments
or because they are caring for elderly
parents.
I have to be frank, then, about the
extent of my disappointment with the
Bar’s response to these reforms. Rather
than embracing their potential, or even
waiting to see how they pan out, the Bar is
actively working to undermine them, the
upshot of the Bar’s recent amendments
to its Practice Rules undoubtedly being
that practitioners will refuse appointment because they do not wish to exclude
themselves from further practice in that
particular jurisdiction. This is a sensational overreaction, one which snubs,
rather than engages with, the promise of
reform.
I am aware, of course, of concerns that
the reforms fetter judicial independence.
I still believe that, just
as appointing those who
hold judicial office is
a privilege, accepting
judicial office is not an
entitlement of the best
and the brightest, but a
duty.
I believe, however, that the safeguards
are adequate, via a range of mechanisms
including fixed five-year terms, nonrevocable certificates to undertake judicial duties, and retaining the central
role of the court in the appointment and
use of acting judicial officers. It will be up
to the courts to identify the need for an
acting judge in the context of managing
their workload, and I believe that the evolution and the maturity of the profession
render it capable of adjusting to further
fluidity.
More insidious, however, is the concern
that the expansion of acting judicial positions and the creation of permanent parttime Magistrates will lead to a two-tier
system — that those who accept appoint-
ment on this new flexible basis will be
regarded as second-class citizens within
the judicial populace. Well, today I appeal
to all of you not to buy into this rubbish.
This prophecy will be self-fulfilling if we let
it be — if we subscribe to the conservative
fear of difference that has kept so many
other reforms at bay. This harbinger of
doubt, this malevolent whisperer, speaks
to the insecurities that have kept all those
whose experience and circumstances are
beyond the traditional sphere, outside the
senior ranks of the law for so long.
In jurisdictions like the UK, they are
reaping the rewards of refusing to succumb to suspicion and I believe that, here
in Victoria, it is our collective responsibility to fight those archaic and isolationist
attitudes that, at their heart, are not about
the preservation of the judiciary, but the
preservation of privilege. What is it about
the law and the legal profession that make
them so reactionary, so afraid of change?
Why can’t the legal profession be leaders
— open to new possibilities at every turn,
rather than battening down the hatches at
the first sniff of the winds of change?
I still believe that, just as appointing
those who hold judicial office is a privilege,
accepting judicial office is not an entitlement of the best and the brightest, but a
duty. Yes, it is a reward, a recognition of
experience and talent. More importantly,
however, it is a bestowing of trust, a public service and a reciprocation of the faith
that the community has placed in you.
After all, legal practitioners are, no matter
what their background, a privileged class.
Well, with privilege comes responsibility
— responsibility to use your experience,
your intellect, your mastery of the law to
the advantage of your chosen discipline,
and of the community.
Rob Hulls MP
Attorney-General
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Legal Practitioner’s Liability Committee
Bar Defence
W
ELCOME to Bar Defence — a
risk management initiative of the
Legal Practitioners’ Liability
Committee for the Victorian Bar — this
will be a regular column in Victorian Bar
News to address risk management issues
affecting barristers, with practical tips and
ideas to consider in your own practice to
minimise the risk of a professional liability
claim.
LPLC welcomes any feedback about the
column, alternatively suggested topics you
would like to see covered in future issues
(send your email to [email protected]).
Risk management is not something
that is best learned by studying text
books or law reports, but rather through
experience, the exercise of common
sense, and effective communication with
everyone with whom you deal in the
course of your practice – clients, the Court,
solicitors, other members of Counsel,
clerks and your own staff. Over time,
risk management becomes ingrained and
cultural — the result of innate awareness
to forsee problems and take positive steps
to prevent the potential misfortune from
occurring. It’s about getting on the front
foot and being proactive rather than
reactive, and paying proper attention to
the finer details of record keeping.
COMMUNICATING WITH SOLICITORS
There is the world of difference between
being a successful advocate and being
a good communicator. LPLC’s analysis
of VicBar’s claims statistics shows that
communication failures between barrister
and instructing solicitor are the most
frequent underlying cause of claims
involving barristers. Fault can of course
lie on either side (or even both sides) of
the fence, but from a risk management
perspective, we are less interested in the
adversarial allocation of blame, than in
promoting “good practice”.
Some common communication problems encountered between barristers and
solicitors are described below.
Fee disputes
Solicitors frequently complain that
Counsel’s fees are excessive. Whatever
the reason for the complaint, on closer
analysis we find that the genesis of the
dispute usually lies in an unmarked brief.
The solicitor who sends an unmarked
brief, without any confirmation of the fee
arrangement, is inviting trouble, but good
communication by the barrister would
suggest that before undertaking any
work, he or she (a) contacts his clerk to
check whether a fee has been discussed
or agreed, and if not, then (b) contacts
the solicitor and specifies the proposed
fee, whether as a lump sum, scale fee
or hourly rate. Solicitors usually prefer
a total estimate and if it is necessary to
qualify an estimate, then do so. Preferably
all of this will be confirmed in writing.
Not only is the clarification of the
basis for charging fees good practice but,
from the commencement of the Legal
Profession Act 2004 on 12 December
2005, it will be a statutory obligation
under s.3.4.10(2).
Remember that your insurance policy
does not provide cover for claims for
refunds of fees or for damages that
are calculated by reference to fees or
disbursements charged.
Brief sitting on the desk (or floor)
gathering dust
Usually the barrister is awaiting further
instructions on some aspect of the brief,
having telephoned the solicitor and given
advice as to what is needed. From time
to time, the problem is that the barrister
is too busy and puts the brief in the “too
hard basket”. Weeks and months then go
by, often resulting in a limitation period
or other deadline being missed (disaster)
or more generally the client’s case suffers
because of delay.
Your best defence to a claim of
negligence will be a paper trail evidencing
prompt and diligent attention to the brief.
The solutions are many and varied, and
include:
• Record the date of receipt of all briefs
and other correspondence.
• Maintain a system for diarising matters
to follow up.
• Keep notes of conversations with
instructing solicitors.
• Warn the solicitor of any looming
deadlines, preferably in writing.
• Return the brief, with a suitable
covering letter, if repeated requests
for instructions are ignored. Before
returning a brief you should refer to
the Bar Rules of Conduct regulating
the return of briefs, particularly Rules
96(e), 98 and, for criminal cases, 101.
Notifying orders made
A number of claims have arisen from
mistakes in communicating orders made
by a Court — either because of errors in
transcription or simple delay in returning
the brief. Even if your instructing solicitor
is in attendance at Court, prompt written
confirmation of Orders made in the case is
good practice. If the only communication
to the solicitor of the orders made is the
handwritten notation on the backsheet
returned a week or more after the event,
then the risk of errors and misunderstandings is obviously increased.
A phone call after the Court appearance, followed by an email or facsimile
to the solicitor detailing the terms of the
Order and any matters requiring urgent
attention will avoid the pitfalls of the brief
going astray in the post or in your clerks’
office, or for the potential that your handwriting might be misread.
.
The poorly prepared brief
Here is a common enough scenario. You
receive a brief to appear for the plaintiff
in an interesting commercial dispute. The
case is two weeks from hearing. Upon
reading the somewhat limited papers, you
become concerned about the state of the
pleadings, the lack of discovery and the
absence of witness proofs, and suspect
that there is a good month’s preparation
still to be done.
You may not wish to risk offending your
instructing solicitor (though this certainly
varies from barrister to barrister!), but
this is a classic high risk hospital handpass, and a scenario that would often be
the breeding ground for a professional
negligence claim. So from a risk management perspective, what should you do?
Whilst each case will depend on its own
circumstances, we would offer the following suggestions:
13
• The desirability for the barrister to send
a written memorandum to the instructing solicitor outlining the further preparatory steps needed, and by whom.
If the solicitor is out of his or her depth
(as can often be the case), he or she
will probably be grateful for this guidance. The advice might, for the sake of
urgency and convenience, first be given
orally in conference, but should extend
to written confirmation so that there is
no room for doubt.
• Canvass with the solicitor (and the client if necessary) whether an adjournment of the hearing date is needed, and
if so, the probable terms on which that
might have to occur, particularly with
respect to costs.
• Above all, these situations call for clear
(focused) thinking, patience and diplomacy!
NOTIFICATION OF CLAIMS/
CIRCUMSTANCES
The LPLC urges barristers to give us “early
notification” of claims and facts/matters of
which you become aware that may give
rise to a claim. We cannot emphasise
this strongly enough. All discussions are
treated on a confidential basis, and there
is no penalty for early notification.
The benefit of early notification is that
it gives us the best chance of working
with you to nip a claim or potential claim
“in the bud” before it becomes a formal
dispute. Not only is this the best means
for avoiding undue publicity that might
attach to a litigated dispute, it also enables commercial relationships to be preserved in many cases. If litigation follows,
early notification will have enabled us to
identify the issues earlier and often taken
steps in mitigation of damage that ultimately results in the claim being resolved
at less cost to all concerned.
If you have any doubts about whether a
circumstance is notifiable, or wish to discuss a claim or potential claim, our Claims
Managers (Justin Toohey and Rolly Briglia
on 9670 2001) are available to take your
call.
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Welcomes
President, Court of Appeal
Justice Chris Maxwell
O
N 21 June 2005 the Honourable
Chris Maxwell was appointed the
second President of the Victorian
Court of Appeal with effect from 16 July
2005.
Like his predecessor in office, the
Honourable John Winneke, Chris Maxwell
was an outstanding Australian Rules
player. He played in the University Blues
1971 Premiership team and was a member
of the 1972 All-Australian University side.
However, His Honour, like his predecessor, brings to his appointment more
than mere sporting skills. He brings also a
combination of broad education, intellectual integrity, a history of dedicated pro
bono work and an innate sense of justice.
His Honour was educated at Melbourne
Grammar, the University of Melbourne
and Oxford University, and at the Inns
of Court School of Law in London. At
Melbourne Grammar he was a member
of the First Eleven, the First Eighteen
and the Athletics Team. At Melbourne
University he played for University Blues
and was a member of the Blues 1971 A
Grade Grand Final Team.
After completing a first class honours degree in Philosophy and History,
his Honour interrupted his LLB studies at Melbourne to take up the Rhodes
Scholarship. He obtained a BPhil at
Oxford before studying for the English
Bar. He was called to the Bar as a member
of Lincoln’s Inn in 1978 and practised at
the English Bar for a short time before
returning to Melbourne in 1979, to be
admitted in Victoria on the strength of his
English admission.
In March 1983 he commenced reading
with Kenneth Hayne (now Justice Hayne
of the High Court), but deferred his reading to take up appointment as Principal
Private Secretary to Gareth Evans when,
after the 1983 election, Gareth Evans
became
Commonwealth
AttorneyGeneral.
Shortly after his Honour returned to
the Bar, Ken Hayne took silk. His Honour
completed reading with Ross Robson QC
and signed the Bar Roll in 1984. He then
completed his Melbourne Law Degree,
which had been interrupted by his taking
up the Rhodes Scholarship, and graduated
in December 1984. He took silk in 1998.
He is a supporter of government schools.
His children attend St Kilda Park Primary
School, where he served a three-year term
as President of the School Council. He has
(to quote Victoria Strong, the President of
the Law Institute) “devoted considerable
time, energy and enthusiasm to developing an after-hours sports program” at that
school and has been “a passionate coach of
the Under 15 team”.
He is a vigorous defender of the rights
of the individual. He spent some seven
years as Legal Aid Commissioner and
served on the Board of Liberty Victoria for
six years, two of them as President.
In his involvement with Liberty Victoria,
he appeared with Julian Burnside QC and
John Minetta in the Tampa case, claiming
that the Commonwealth had unlawfully
detained people rescued by the captain of
the Norweigan container ship, Tampa.
The proceeding succeeded at first
instance but the decision of North J was
set aside by a majority of the Full Court;
and the Commonwealth passed legislation
to prevent an appeal to the High Court.
The Commonwealth then proceeded
to seek costs against Liberty Victoria (i.e.
against the Board Members of that body,
including Chris Maxwell). The Full Federal
Court denied the application for costs,
Beaumont J saying:
The counsel and solicitors acting in the
interests of the rescuees in this case have
evidently done so pro bono. They have
acted according to the highest ideals of the
law. They have sought to give voices to those
who are … voiceless and, on their behalf, to
hold the Executive accountable for the
lawfulness of its actions. In so doing, even
if ultimately unsuccessful in the litigation,
they have served the rule of law and so the
whole community.
High profile cases, such as the Tampa
are, however, just the tip of the iceberg.
His Honour has at all times been prepared
to put his concern for human rights and
the interests of justice before his own professional or pecuniary interests. If there
is injustice, he believes that it should be
fought; if the rights of the individual are
eroded by legislation, then the ambit of
that legislation and its validity should be
tested.
The current President of Liberty
Victoria, Brian Walters S.C., is quoted as
saying that Justice Maxwell’s “characteristics of legal acumen, a clear understanding
of human rights and rare courage made
him the perfect choice to replace Justice
Winneke”.
His Honour has worked tirelessly and
without financial reward in the interests of
those who could be seen to be oppressed.
His sense of justice and fair play are manifest. He is not, however, a Don Quixote tilting at windmills. His Honour is an excellent
black letter lawyer, a man of precise legal
thought and tight logical analysis. He could
described, perhaps, as a “pragmatic idealist”. He is also a man of total intellectual
honesty. He was not as counsel prepared
at any time to present any argument which
might, as a result of dubious logic, mislead
the court.
Perhaps the best insight into his
Honour’s thought process is to be found in
remarks which he made in his reply to the
addresses of welcome on 25 July this year,
where his Honour, having referred to the
average delay in the hearing of appeals in
the Court of Appeal, said:
There is a very serious problem of delays
in the Court of Appeal … These delays are
15
clearly unacceptable. Reducing them is my
first and most urgent project. But one thing
is already clear. There is no scope for the
judges of the Appeal Division to be asked to
work any harder than they do now.
I have been shocked to discover that
many already work seven days a week, and
late into the night and most nights. Such
a punishing regime is unsustainable and
it is unsafe. I simply do not see how it can
be reconciled with the Crown’s undoubted
obligation to ensure a safe working environment.
My first priority will be to investigate how
the business of the Court can be dispatched
more expeditiously. I will be looking to
achieve greater efficiency without sacrificing the quality of justice — for example,
by being more selective about the cases in
which judgment is reserved and lengthy
judgments are written.
It is fortunate that, at a time when,
by reason of the growth of international
terrorism, there is a temptation for government to override individual rights in
the interests of community safety, a man
such as described by Brian Walters should
be appointed President of the Court of
Appeal.
We welcome his Honour’s appointment
and wish him well in his new role.
Court of Appeal
Justice Ashley
O
N 21 June 2005 David John Ashley
was appointed a Justice of Appeal
of the Supreme Court of Victoria. At
that time he had served almost 15 years as
a Justice of the Supreme Court.
At his Honour’s welcome to the Supreme
Court on 21 August 1990, David Harper
QC (now Justice Harper) commented at
length on his Honour’s academic, sporting and cattle breeding achievements.
Of his Honour’s sporting achievements
David Harper said: “You left school noted
for the technical correctness, Boycott-like
solidity, and thirst for runs, which marked
your career as an opening batsman in the
First 11.”
BLASHKI
ESTABLISHED 1858
MELBOURNE HEAD OFFICE
322 Burwood Road,
Hawthorn, Vic. 3122
Phone: (03) 9818 1571
Fax: (03) 9819 5424
Hours: Monday-Friday ~ 9am-5pm
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Those of us who have appeared before
Justice Ashley whether, in the Trial
Division or in the old Appeal Division of
the Supreme Court, are very conscious
that those words apply equally to his
Honour’s performance on the Bench.
His Honour has always come into Court
fully apprised of the issues and, so far as
the court papers permit, fully armed with
the facts — the “Boycott-like solidity”. He
has displayed a detailed familiarity with
the relevant law which cannot be attributed solely to an encyclopaedic knowledge
of all aspects of the law — the “technical
correctness”. Trials before Justice Ashley
have always proceeded at a brisk pace. His
Honour has tended to keep counsel to the
point and has discouraged any wandering from the main road of the argument.
Sometimes, perhaps, one could detect
in his Honour’s questions the “thirst for
runs”.
His Honour was the principal judge of
the Common Law Division of the court
from the inception of the three divisions
on 1 January 2000 until his elevation to the
Court of Appeal.
His Honour’s capacity for hard work,
his enthusiasm to identify the key issues,
his incisive mind and his impatience with
humbug make a welcome addition to the
Court of Appeal. But that appointment is
a loss to the Trial Division of the Court
where his talents, not least his facility to
assess witnesses and to master complex
fact situations will be sorely missed.
We welcome his Honour’s appointment
with enthusiasm.
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Welcomes
Supreme Court
Justice Kim Hargrave
T
HE Honourable Justice Kim William
Spencer Hargrave was appointed
to the Supreme Court of Victoria
on March 2005. His Honour’s qualifications for appointment are highlighted by
two statements made at his welcome on
March 2005.
Kate McMillan S.C., welcoming him
on behalf of the Bar, said that he has
been described “as a persuasive advocate, an excellent cross-examiner, calm
under pressure, clear and insightful
and just plain clever”. The immediate
past President of the Law Institute,
Christopher Dale, described his Honour
as “outrageously polite, methodical and
ordered, compassionate, thoughtful and
intellectual”. To this list of his Honour’s
characteristics, many who know him
would add that his Honour is a “man of
pragmatic good sense”.
His Honour is probably the first member of the Supreme Court to have sailed
in the Sydney to Hobart Yacht Race. While
still a schoolboy he sailed on the Winston
Churchill, the only yacht from the original 1945 field which is still afloat.
He was educated at Brighton Grammar
and the University of Melbourne. After
graduating with Honours in 1977, he
served his articles at Corr & Corr (as it
then was) and remained with that firm
until 1980 when he came to the Bar. He
read with David Harper (as he then was).
He himself had two readers, Dr Karen
Emerton and Kevin Lyons. He took silk
in 1994.
His Honour’s practice at the Bar
was largely in the commercial area. He
appeared in major large-scale commissions and enquiries and in most of the
major take-over litigation. His Honour
was from 1989 to 1990 heavily involved
in the National Companies and Securities
Commission enquiry into dealings
between Bond Corporation Holdings
Limited and the Bell Group Limited. From
1991 to 1992 he was involved in the Royal
Commission into the collapse of the TriContinental Group of Companies. He was
also engaged in the Royal Commission
into the Metropolitan Ambulance Service.
In the Bond Brewing litigation he was
junior to Alex Chernov QC (as he then
was). In this context, Kate McMillan
adverted to another characteristic possessed by his Honour:
After the case, there was time for some
skiing — where but Vail? Your Honour was
a reasonable sportsman — you had been a
good footballer, you had sailed and you had
done some skiing. Chernov, however, was
an elegant and excellent skier. Seduced
by his elegance and excellence, after a few
runs, you gained false confidence and followed him. You may not have been elegant
but you were up there with him — until you
came across that sheet of ice. Determined
not to admit that you had over-reached
yourself, you made no admissions and
skied on with cracked ribs — calm under
pressure, alternatively, a streak of stubborn
determination.
If Christopher Dale’s assessment of his
Honour’s performance in the Intergraph
inquiry is any guide, it would seem that
Kate’s first alternative, “calm under pressure” is the correct interpretation. Of
Kim Hargrave and the Intergraph inquiry
Christopher Dale said:
One of the continuing themes that emerged
was your Honour’s patience and ability to
relate to both clients and to junior practitioners … It was your Honour’s advocacy
skills and calm reasoned approach to deci-
sion-making that was greatly lauded. In fact
you were described as being somewhat of
an “island in the storm” for your ability to
maintain a cool head and calm manner even
in the most chaotic and trying of circumstances.
When, some ten years ago, Bar News
asked Kim Hargrave his reaction to taking silk, he replied: “Delight, pride and
apprehension”. There was no need for
apprehension then. There is certainly no
basis for apprehension now.
His Honour is a man who can deal
with the finer points of the law across the
spectrum and at the same time maintain a
capacity to see the whole picture. He will
dispense commonsense justice according
to law.
His Honour has the dubious distinction of being twice required to sing for
his supper at Bar dinners. When he took
silk in 1995 he was the junior silk for that
year, with the consequence that he was
required to perform to the delight and/or
anguish of the twenty honoured guests.
At the 2005 Bar dinner he was the most
recently appointed member of the judiciary and once again was required to speak,
this time on behalf of the guests.
One of the matters mentioned at his
Honour’s welcome was his interest in contemporary music and his habit of using
extracts from contemporary music as
Rumpole would use classic texts. This was
evidenced by his Honour’s speech at the
2005 Bar dinner where his Honour said:
When Ross Ray telephoned me, I went “A
Whiter Shade of Pale”. “Don’t Let Me Be
Misunderstood”, it was an honour, and not
a poisoned chalice, to be asked. However,
having given the junior silk speech nine
years ago, I would have hoped to avoid the
burden of the junior judge speech.
So, as this “New Kid in Town” what are
my aspirations for judicial life? First to avoid
the “Lonely Days” of judicial life. I will try
to maintain my friendships at the Bar and
not retreat to my Chambers feeling “Alone
Again, Naturally”. Second, I will seek “Help”
… I look forward to getting by “With a
Little Help from my Friends” I am sure that
together “We Can Work it Out”.
17
This last paragraph accurately reflects
his Honour’s approach to life and to his
judicial role. Self-importance is not in his
vocabulary. His Honour’s court will be a
pleasant one in which arguments will be
considered carefully and, where appropri-
ate, discussed at length. There will be no
a priori assumption that the judge knows
best.
We welcome his Honour’s appointment
and wish him well.
Supreme Court
Justice Betty King
Welcome speech by Ross Ray QC,
Tuesday 19 July 2005, upon the
appointment of the Honourable
Betty King to the Supreme Court of
Victoria
M
AY it please the Court. I appear on
behalf of the Victorian Bar to offer
our warm congratulations on Your
Honour’s appointment to this Court.
This appointment crowns a career
of service to the Law, the State and the
Commonwealth. In the course of Your
Honour’s 25 years at the Bar, you served as
a Prosecutor for the Queen in right of the
State, and in right of the Commonwealth.
You were a member, and sometime
Acting Chairman, of the National Crime
Authority. And, of course, for more than
five years, have graced the bench of the
County Court.
Typically, Your Honour did not stand
18
on ceremony, or wait around bashfully to
be welcomed to this Court. The afternoon
the appointment was announced, you
threw your own welcome with drinks and
savouries in the Essoign. You were sworn
in the next day, and celebrated American
Independence Day sitting in a criminal
mention.
Your Honour was educated at
University High School, and the University
of Melbourne. You were just a couple of
years ahead of Justice Dodds-Streeton
at University High. It may be a few
years before University High rivals the
men’s public schools on the Court, but
Your Honours are certainly a dynamic
start.
You served articles with Keith Hercules
and certainly were not introduced to
crime in that office. Very soon after admission, Your Honour came to the Bar, and
read with John Kaufman QC, not because
of any fascination with the discretionary
trusts about which John has written, but
because you’d briefed him in a common
law matter while with Keith Hercules, and
he was the only barrister you knew.
At Your Honour’s welcome to the
County Court, you described Ramon
Lopez as your “other master”. Despite
your mutual devotion to matters criminal, Ray Lopez appeared before Your
Honour only once in your five years on
the County Court. Your Honour presided
over what was to have been the first trial
in the new courthouse at Wodonga, that
of a locally notorious alleged sex offender.
And that was the problem. Time after
time, jurors realised that they knew one
of the witnesses — and one juror, after
the opening address, went to pieces at
the bizarre nature of what was alleged.
Ray can’t remember whether it was four
or five juries that had to be discharged.
In the end, the trial had to be moved to
Melbourne.
In 25 years at the Bar, Your Honour
practiced almost exclusively in Criminal
Law — though, remarkably, after you’d
taken silk, and not long before your
appointment to the County Court, you
developed a practice in the arcane
world of taxation and administrative law,
appearing in the Federal Court.
In earlier days, you were the Bar representative on the Police/Lawyers Liaison
Committee, and were a member of the
Criminal Bar Association executive committee — perhaps the single most active
Bar committee in making submissions
on legislation and proposed legislation to
governments, both State and Federal.
Your Honour was an active member of the organising committees, and
of the Papers Committees, of the two
International Criminal Law Congresses
held in Melbourne — the sixth
International Criminal Law Congress in
1996 and the eighth in 2002. Your Honour
was always ready and willing to take on
the difficult jobs on those committees.
Your Honour taught for many years,
both at the Leo Cussen Institute and
in the Bar Readers’ Course. It was a
particular pleasure to have you at the
Readers’ Dinner in May, celebrating your
daughter Elizabeth’s signing of the Bar
Roll. Elizabeth, by the way, had been a
member of the Deakin University moot
court team that competed internationally
in Europe.
Your Honour and the late Lillian Lieder
were pioneer women criminal advocates
and criminal silks. You both took silk the
same year, in 1992, as did your Master,
John Kaufman.
There were only 12 silks that year, a
good number for a photo — individuals
rather than a crowd scene. And the Bar
News photo is great. Lillian is front and
centre, flanked by Your Honour and Noel
Ackman. Lillian is standing tall, her rather
small wig perched precariously awry, atop
her unruly mane of red hair.
Justice Nettle is behind and to the left
of Your Honour, standing very tall, the
gravitas of a Justice of Appeal already
visible in His Honour’s rather solemn gaze.
Lillian, Your Honour and John Kaufman
are all smiling.
David Curtain, the Bar’s resident
arbiter of fashion and suavity, and also
Bar Chairman that year, spoke at Your
Honour’s welcome. He described Your
Honour as “the best dressed silk at the
Bar, having had your silk robes hand-tailored”.
Curtain failed to mention Your Honour’s
flair and skill as your own coutourier. Each
year, for the Bar Dinner, you created your
own ensemble. On the County Court, Your
Honour began as you intended to, and did,
continue — as an individual. You declined
to wear your wig in the photograph for the
Judges’ gallery, again demonstrating your
sense of style before protocol.
On the County Court, Your Honour
distinguished yourself as a trial judge,
specialising in crime, but also taking your
share of civil cases.
Amongst your County Court judicial
colleagues, Your Honour is known not only
for leopard skin boots, and bright-coloured
spectacles frames, but you are also known
for sound judgment and industry — and
for open-door approachability — called
on by junior, and more senior, judicial colleagues alike to discuss difficult cases.
Your Honour personifies judicial independence and does not shy away from
hard decisions. You recently imposed life
without parole when the prosecutor had
asked for something less.
Supreme Court
Master Efthim
presence, you have instigated a change that
sets an important and welcome precedent
in this court.
O
N 21 July 2005 John Efthim was
welcomed as a Master of the
Supreme Court of Victoria. He is
the first Master to be formally welcomed
by the profession. As Kate McMillan S.C.
said at his welcome:
Your appointment as a Master of this Court
was widely acclaimed by the profession. It
prompted a number of our members to ask
why the profession had not previously given
ceremonial welcomes to Masters. The Bar
approached the Chief Justice and her Honour enthusiastically approved the proposal.
Your welcome today is the first ceremonial sitting to welcome a Master to
the court, at least in modern times. Thus
by virtue of your esteemed reputation and
John Efthim comes to the Supreme
Court after eleven-and-a-half years service as Deputy Registrar of the Federal
Court.
He graduated as a Bachelor of Science
and Bachelor of Laws from Monash
University and subsequently obtained
the degree of Master of Business
Administration from Monash and a
Master of Laws Degree from Melbourne
University.
He was admitted to practice in 1977
and, in the 15 years before his appointment as Deputy Registrar of the Federal
Court, practised across almost the whole
ambit of the law. As (effectively) in-house
corporate counsel at Nortel Australia he
was involved in the drafting of multi-million dollar supply contracts and the drafting of licensing agreements for software
products involving complex intellectual
property issues.
He was the inaugural legal officer of the
State Superannuation Board and established the legal section attached to that
body. He was involved in personal injuries
work with the State Insurance Office. He
then went to the Crown Solicitor’s Office
(as that office was then known) and was
there involved in common law litigation.
While at Crown Law he was also involved
with numerous orders to review both as
applicant and respondent. This should
give him a sympathy for those who now
make applications before him seeking
leave to appeal from the Magistrates’
Court or VCAT.
One of the few fields in which he did
not practise at any time was bankruptcy.
As Deputy Registrar of the Federal Court,
one of his prime functions was to deal
with bankruptcy matters. It is a comment
on his capacity as a lawyer that those who
appeared before him in the bankruptcy
jurisdiction in the Federal Court have
nothing but the highest praise for him as
a lawyer. As a human being, of course,
anyone who knows John Efthim cannot
speak too highly of him. He is one of those
people who have the gift of empathy. He
will listen sympathetically, but he will analyse critically.
It was rare for any mediation that he
undertook while with the Federal Court
not to reach a settlement on at least some
of the issues if not total settlement. He
disclaims credit, saying that statistics are
irrelevant and the purpose of mediation
is to empower the parties. But his record
in mediation, particularly in Native Title
cases was amazingly successful. The Full
Federal Court referred one such case to
him for mediation and, when it settled,
the three judges gave him a framed photograph of that Full Court panel, inscribed
and signed in thanks for his mediation and
its result.
In the Ansett Superannuation proceeding the respective parties appeared to
have taken intractable stances. Justice
Goldberg, wholly frustrated by the attitude of the parties, ordered four days of
mediation, concurrent with the trial. With
John Efthim as the mediator settlement
was achieved and payment of entitlements was made prior to Christmas. Greg
Combet, the ACTU Secretary is reported
to have stated: “If you can’t beat them,
‘Ef’-Them!”
John Efthim is a supporter of the
Carlton Football Club and also an enthusiastic race-goer. When one looks at
Carlton’s performance this year, one
must hope that his choice of horses is
better than his choice of football teams.
Apparently, he had the capacity, in his
own warm way, to explain Carlton’s lack
of success week by week. To quote Kate
McMillan once again:
Your friends and colleagues at the Federal
Court, the Judges and others will miss you.
They will miss the Monday morning analysis
of why Carlton failed that weekend. They
will miss your good humour and friendly
gossip that was described as interesting
and useful and “made us understand one
another better”. Your “news” was a subtle
19
influence in building collegiality within the
Court. It has not gone unnoticed that in
some quarters you are addressed affectionately as “Chief Poo Bear” and “Spiro”.
One has to meet or appear before John
Efthim to appreciate properly the significance of this statement. Unassuming,
perceptive with no sense of self-importance or of judicial infallibility, John
Efthim generates warmth and informality. Except that he lacks the “heavily
built Falstaffian figure”, John Efthim on
the Bench, whether as Deputy Registrar
of the Federal Court or as Master of the
Supreme Court reminds one of Yates’
“affable irregular”. Without detracting
from the dignity of the court, he generates an informality which puts everyone,
including litigants at ease.
We are delighted at John Efthim’s
appointment and in closing cannot do
better than Kate McMillan: “The Federal
Court’s loss is the Supreme Court’s gain.
The profession and the Court are well
aware of that.”
County Court
Judge Morrish
Welcome speech by Ross Ray QC,
Monday 15 August 2005, upon the
appointment of Her Honour Judge
Morrish to the County Court of
Victoria
M
AY it please the Court.
I appear on behalf of the
Victorian Bar to offer our warm
congratulations on the appointment of
Judge Morrish to this Court. I address my
remarks to Her Honour.
At the Bar, Your Honour is known
for thorough preparation and meticulous attention to detail — qualities Your
20
Honour brings to the wider service of the
community as a Judge of this Court.
Your Honour was educated at Beth
Rivka Ladies College, and at Monash
University — graduating Bachelor of
Jurisprudence and Bachelor of Laws. You
are also a graduate of the National Theatre
Drama School.
Your Honour served articles with David
Miles at Maddock Lonie & Chisolm. You
were admitted to practice on the motion
of George Hampel QC and Michael
Rozenes — now Professor the Honourable
George Hampel, and His Honour Chief
Judge Rozenes.
Your Honour practised as a solicitor
very briefly with Maddocks, and then with
Cohen Frenkel Berkovitch & New.
Your Honour then worked as a solicitoradvocate for the Legal Aid Commission,
appearing in criminal matters in the
Magistrates’ Court, and serving as the
first duty lawyer at the Family Court at
Dandenong.
Your Honour signed the Roll of Counsel
in 1985 and read with His Honour Chief
Judge Rozenes.
Your Honour began in the usual way,
with a broad mix of work including
crash-and-bash, crime and family law. You
developed a more specialised practice in
criminal law, appearing regularly to prosecute on behalf of the Crown (both State
and Commonwealth), but also maintaining a defence practice — both legal aid
and private clients. Your Honour was regularly briefed by the Victorian Government
Solicitor.
Your Honour served for two years as
in-house counsel to the Commonwealth
Director of Public Prosecutions in
Melbourne, working on a variety of matters including immigration and extraditions, taxation, social security fraud,
corporations law prosecutions, asset
confiscations, conspiracies and large-scale
narcotics importations.
Your Honour returned to private practice at the Bar.
Shortly after returning to private practice, Your Honour appeared on behalf of
the Crown in the Court of Appeal against
an unrepresented applicant for leave to
appeal against conviction.
Your Honour agreed to review, overnight, whether there was any arguable
case for the unrepresented applicant, who
spoke no English.
Justice Tadgell, speaking for the Court,
commended the extraordinary thoroughness of Your Honour’s overnight review.
I quote Justice Tadgell: “Neither the
Court nor the applicant was entitled to
put [Your Honour] to the trouble to which
[you] had evidently gone.”
Your very thorough review of the best
arguments that could be made for the
unrepresented applicant was, and again
I quote Justice Tadgell, “in the best traditions both of the Bar, and of the administration of justice in this State”.
Your Honour was appointed one of Her
Majesty’s Counsel in 1999.
Your Honour had been about to take
a reader, but that was forestalled by taking silk. You have, however, participated
actively in the senior mentor schemes,
both at the Bar and with the Office of
Public Prosecutions — being senior mentor to Sharon Lacy, Ursa Masood and
Joanne Smith.
As Senior Counsel, Your Honour moved
deliberately to broaden your practice,
appearing in commercial and administrative law cases, as well as in crime; and in
family law, confiscation of assets, inquests,
and professional conduct disciplinary
hearings.
From Your Honour’s earliest days in
the law, you have done pro bono work.
You worked as a volunteer at the St Kilda
Legal Service. At the Bar, you did pro bono
work, both through the Public Interest
Law Clearing House and privately.
There is an example of Your Honour’s
meticulous attention to detail in a rape
case which Your Honour took pro bono in
the ACT.
A husband was accused of an allegedly
brutal assault and rape of his estranged
wife. The husband denied the whole
incident. There was no physical or DNA
evidence.
Your Honour was examining photographs of the crime scene, which included
the prosecutrix wife’s suitcase — closed in
one photograph, but open in another.
Your Honour examined the photograph carefully with a magnifying glass.
In the wife’s open suitcase, you were
able to identify a paperback novel –— If
Tomorrow Comes by Sidney Sheldon. You
went to the trouble of obtaining and reading that novel. You struck gold!
The heroine of the novel, released
from prison, exacts revenge on the men
who framed her, by framing them. One
of them, she frames for a brutal assault
and rape.
Astonishingly, the evidence of the
prosecutrix in Your Honour’s real-life
case was, in every detail, identical to that
in the novel — even to the colour of her
lingerie.
Knowing the fictional base, Your
Honour set your female junior to work
on establishing that a particular sex-act
alleged was the product of Mr Sheldon’s
lurid imagination, and not physically possible — not something a male criminal silk
could easily ask of his female junior.
For three years, Your Honour served
on the Committee of the Criminal Bar
Association. The Chairman of the CBA,
Lex Lasry QC, is with me at the Bar table
today in honour of your appointment.
Both for the Criminal Bar Association,
and for the Bar as a whole, Your Honour
has been the principal author of, or a
major contributor to, a number of very
substantial submissions to law reform
agencies and governments.
In December 2003, Your Honour was
appointed to the Bar Legal Education &
Training Committee chaired by Justice
Nettle. Your Honour worked on the
design, development and implementation
of the criminal law aspects, as well as on
the overall new mandatory CLE course as
a whole.
Your Honour has taught in the Bar
Readers’ Course, in numerous other advocacy training courses for various bodies,
and was a member of the Bench and Bar
team that taught in Papua New Guinea
last October.
Your Honour has also served on the
Bar’s Aboriginal Law Students’ Mentoring
Committee.
Your Honour established and headed
a new set of chambers, “Gaudron
Chambers”. Justice Gaudron officially
opened those chambers in March last
year. Alas, with Your Honour’s appoint-
ment to the Court, those chambers are
no more.
Your Honour is an accomplished classical pianist, and is fluent in a number
of languages. The collegiality and loyalty
between Your Honour and those with
whom you work is demonstrated in Your
Honour bringing with you to the Court,
your long-serving secretary, Marlene.
Your Honour was a solicitor when
the Director of the Bar 1984 Centenary
Review, Simon Wilson — the Bar’s own
Max Bialystock — recruited you for the
Corps de Dance.
Hits from that review include “I’m one
of the girls who’s one of the boys” and
— now prophetically — the finale (stolen
from the Broadway musical, “See Saw”):
“It’s not where you start; it’s where you
finish”.
The Bar wishes Your Honour long and
satisfying service as a Judge of this Court.
May it please the Court.
County Court
Judge Leckie
Welcome speech by Ross Ray QC,
Tuesday 16 August 2005, upon the
appointment of His Honour Judge
Leckie to the County Court of
Victoria
M
AY it please the Court.
I appear on behalf of the
Victorian Bar to offer our warm
congratulations on the appointment of
Judge Leckie to this Court. I address my
remarks to His Honour.
In more than 30 years at the Bar, Your
Honour has earned the respect of all with
whom you have come into contact. You
have been an effective and fair Senior
Prosecutor for the Queen, and the Bar
welcomes your appointment to this
Court.
Your Honour’s secondary education
was at Ivanhoe Grammar School. You sampled a number of alternatives in your legal
education. You began at the Australian
National University. You returned to
Melbourne and transferred to long articles
with the late Max Ham at Mallesons. Your
lecturers in the articled clerks’ course at
RMIT included Sir Daryl Dawson, the late
Neil Forsyth QC and Haddon Storey QC.
Max Ham practised in wills, trusts
and estates, and in family law. One might
speculate that, had Your Honour served
the full five years long articles with him,
Your Honour’s career might have followed
a very different path.
However, a scholarship took you
to Monash, where you completed the
degree course, graduating Bachelor of
Jurisprudence and Bachelor of Laws.
Your Honour then served short articles with the late Barney Campbell,
senior partner of Campbell & Shaw, and
an experienced and formidable solicitoradvocate.
You worked as an employee solicitor
at Campbell & Shaw for a year, then took
a year off travelling, as did many of that
generation of Australians.
Upon returning to Australia in 1973,
Your Honour signed the Bar Roll and read
with Cairns Villeneuve-Smith, one of the
great advocates of our Bar, and a distinguished Judge of this Court.
Your Honour was a member of what
21
was, I believe, the first set of specialist criminal chambers at this Bar — not
merely adjacent rooms, but a shared
library, and deliberate common purpose.
This was in the 70s, and the suite of chambers was on the 12th floor of National
Bank House — Latham Chambers.
After five years, that set moved to the
27th floor of Aickin Chambers, joining
with some of the criminal counsel from
the 1st floor of Owen Dixon East.
The 27th floor of Aickin consisted, then,
of 12 criminal counsel and six commercial
counsel. It was a dynamic and collegial
environment that included the late Ron
Castan QC and Justices Merkel, Goldberg
and Finkelstein on the commercial side
(“the Golan Heights”) and included Chief
Judge Rozenes, Your Honour, the late
Graeme Morrish QC, and Richter QC,
Dunn QC, Howard QC and Parsons S.C.
on the criminal side — later joined by
Judge Hampel (“the West Bank”). Richter,
Dunn, Howard and Parsons are all here
today, as is Ed Lorkin, the Secretary of
the Criminal Bar Association, representing the Association.
While in Aickin Chambers, Your Honour
had one reader, Ken McGowan.
Your Honour was the Melbourne
member for the National Crime Authority
from 1989 to 1993. You were, in that time,
Acting Chairman of the Authority for
some 18 months.
Your Honour resumed practice at the
Bar for a few years. In December 1997,
you were appointed a Crown Prosecutor
for the State of Victoria.
Your Honour was appointed a Senior
Crown Prosecutor in March 2002, and
Senior Counsel in December 2002.
From Your Honour’s early days at
the Bar, you specialised in the criminal
jurisdiction, prosecuting for the State
and Commonwealth Directors of Public
Prosecutions, and defending.
Your Honour is modest and quiet. Like
the Phantom, you emerge from the mists,
do your work, and then vanish again into
the mists.
You are known as a fair prosecutor. The
fair prosecutor — quiet, thoughtful, measured and personable — is, of course, the
most dangerous. Juries like them.
Your Honour is of Scottish extraction. The Leckies are part of the clan
McGregor. It is therefore no great surprise
that there is something of the canny Scot
in Your Honour’s personality.
Shirley Bassey’s hit recording of “Hey,
Big Spender” came out when you were a
student at Monash. She was not singing
about Your Honour.
22
On circuit, prosecuting a culpable driving case, Your Honour attended for a view
on the Coryong Road, on the banks of
Lake Hume. It was bitterly cold. Everyone,
including the judge and jury, was in overcoats, hats and scarves and gloves, except
Your Honour. You were in a mid-weight
autumn suit — elegant, but surely freezing! Your instructor asked if he could get
your coat from the car. “No, thanks.” You
later explained that your coat was a military-disposals German army greatcoat,
and you didn’t want the jury to see you
in that light.
It was, I hasten to add, a post-war
German army greatcoat — warm, and at a
good price, but, on that occasion, useless.
When on a lengthy circuit, Your Honour
generally leases accommodation out of
town. One such place has a deck, with
sweeping views of the Ovens Valley to
Mount Buffalo and the Alps. In the late
afternoon and early evening — a Garden
of Eden setting — Your Honour would
retire to the deck with refreshments and
your .22 rifle.
The eyes of eight Jack Russell Terriers
belonging to a local solicitor light up, and
they wag their tails with delight, each time
Your Honour comes on circuit. They know
your bag of fresh rabbits will be theirs.
Indeed, although we can’t see his tail, I
see His Honour Chief Judge Rozenes’ eyes
light up at the realisation that he now has
a judge who truly loves circuit work.
It’s said that Your Honour has one
photograph of yourself in shorts, bush
hat and boots, holding a freshly caught
barramundi. On the reverse, for friends
with stronger stomachs, is a photograph
of Your Honour in the same costume, but
with your foot on the corpse of a freshly
shot wild boar — a troubling image in the
light of Your Honour’s newly acquired sentencing powers.
Your Honour is also a member of a book
club, of which Deputy Chief Magistrate
Paul Grant is the secretary. Other members include Chief Judge Rozenes, Chief
Magistrate Gray, and Judges Howie,
Punshon and Morgan-Payler. The book
club has being going some five years, so
that its record of appointments to the
bench is quite remarkable. Paul Grant
may need to brace himself for a flood of
new members with high expectations.
The book club meets every couple of
months at a restaurant, and if there’s not
much to say about the book, its members
have an abiding interest in food to discuss.
Your Honour and your brother and
sister continue the Heathcote vineyard
begun by your father, and produce, with
a little help from John Ellis at Hanging
Rock, the Sheoke Hill Shiraz. I’m sure
your new judicial colleagues will be hoping for a continuation of the car-boot-sale
prices offered to your former colleagues
at the OPP.
Your Honour is a good lawyer and advocate — thoughtful and insightful. Your
Honour will add to both the humanity and
the distinction of this Court.
The Bar wishes Your Honour long and
satisfying service as a Judge of this Court.
May it please the Court.
THE ESSOIGN
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Farewells
Court of Appeal
The Honourable Justice Winneke AO AC
D
URING its 170 year history, the
Victorian Bar has produced a
number of eminent counsel and
distinguished members of the judiciary.
Occasionally, there have been amongst its
midst those of outstanding and extraordinary quality, who were destined to make
a special and historic mark in the annals
of the law. They include the likes of Sir
Owen Dixon, Sir Leo Cussen, Sir Wilfred
Fullagar and the Honourable Justice
Thomas Weetman Smith. To that unique
and elite group must be added the name
John Spence Winneke, who retired as
the President of the Court of Appeal on
15 July this year, ten years after he took
office as the founding leader of the Court.
From the earliest days of his tenure,
and during the whole of his term of office,
John Winneke displayed and exercised
the remarkable personal and professional attributes which had been evident
throughout his thirty-three-year career as
a member of the Victorian Bar, 19 of them
as one of Her Majesty’s Counsel. Blessed
with a prodigious intellect, boundless
energy, and profound wisdom, common sense and judgment, John Winneke
brought to his office a vast and intimate
knowledge of humankind, legal principle,
and of the operation of the law in all its
various jurisdictions. A natural leader,
John Winneke is a man who commands,
but never demands, respect, a man of
unquestionable integrity, and a man with
a powerful feeling and understanding for
what is right and just. With those qualities,
his Honour moulded and led a court which
rapidly developed into and remained the
premier intermediate Court of Appeal in
the Commonwealth of Australia.
The background and history of John
Winneke was well documented at the time
of his appointment to office, but nonetheless bears retelling in some detail. For it
was no happenstance that he was such a
successful, distinguished and esteemed
jurist. He came to the Court eminently
equipped for his high responsibilities.
His learning, judgment and instincts were
all forged during a long and outstanding
career as one of the great advocates of the
Victorian Bar.
John Winneke was born on 19 March
1938. He was educated at Scotch College
and graduated in Law from the University
of Melbourne in 1960. After completing his
articles with Mr Josh Shaw of Middleton
McEarchern Shaw and Birch he was
admitted to practice on 1 March 1962.
Eight days later he signed the
Victorian Bar Roll. He commenced reading with Gordon Just (later Judge Just of
the County Court). During the next 14
years as junior counsel, John Winneke
developed an extraordinarily wide, varied and successful practice. He appeared
in cases involving virtually every field of
law. With consummate ease he ranged
into such disparate areas as criminal
law, civil juries, defamation law, commercial and equity cases, probate cases
and town planning matters. His practice
rapidly developed, and he was much in
demand both at trial level and on appeal.
In addition he appeared before a number
of boards of inquiry and royal commissions.
He was counsel assisting Mr William
Kaye QC in the “abortion graft inquiry”
in 1970, which inquired into allegations of corruption involving members
of the Victorian Homicide Squad. He
also appeared as counsel in the Royal
Commission into the Westgate Bridge
collapse, in the Derwent River Bridge
Inquiry, and in the Victorian Housing
Commission Inquiry.
After his Honour took silk in November
1976, the breadth of his practice did not
diminish. As leading counsel he appeared
in significant and difficult cases involving
personal injury, criminal law, insurance,
defamation, contempt, administrative
law, commercial law, industrial law, town
planning, commercial law and equity. In
essence, he could and did appear in any
case whatever the issues of law involved.
He had an amazing capacity to master the
principles of law in areas into which he
had not hitherto ventured. He exploited
his skills honed in the common law and
criminal law. He had a unique and persuasive manner with a jury. He was a brilliant
cross-examiner, with an unerring instinct
as to when to go on the attack and when
to take a witness by stealth. Behind his
forceful advocacy lay an incisive analytical
mind, and an uncanny capacity for identifying the issue or facts on which the fate
of a case may ultimately hinge.
In 1981 he was appointed Royal
Commissioner by the Commonwealth and
State of Victoria to inquire into the affairs
of the Builders Labourers Federation. His
report resulted in far reaching and fundamental reforms in the building industry.
In criminal cases he appeared both for
the prosecution and for the defence. As a
prosecutor he was scrupulously fair and
balanced. He appeared in many notable
criminal trials. He appeared as senior
counsel for Mr and Mrs Chamberlain
before Mr Justice Morling in the Royal
Commission into their convictions for the
murder of their infant daughter. The brief
involved a number of technical forensic
issues, including difficult scientific questions such as the identity and interpretation of blood stains and damage to clothing.
A number of the hearings were interstate
and in Darwin. With peerless skill he dismantled and demolished the evidence of a
number of key experts in cross-examination. Largely due to his tireless and courageous advocacy, the Commission found
that there were serious doubts and questions as to the Chamberlains’ guilt, and as
to the evidence in the trial leading to their
conviction.
23
As a result of those findings, Mr and Mrs
Chamberlain’s convictions were quashed,
thus redressing an historic injustice.
For many years he was an officer
in the Royal Australian Naval Reserve.
He appeared in a number of courts of
marine inquiry including the inquiries
into the collision between MV Wyuna and
the Bass Strait Trader and those into the
casualties involving the Blyth Star, the
Straitsman and the Lake Illawarra.
Throughout his career, John Winneke
gave enormous service to the Victorian
Bar. He had nine readers to whom he was
a wonderful mentor and friend. Three of
those readers were to become judges.
His Honour served on the Bar Council
between March 1988 and September 1991.
He was the longstanding Chairman of the
Foley List Committee. Notwithstanding
his busy practice, his door was always
open to members of counsel seeking his
assistance. His sage advice was invaluable.
His common sense and good judgment
invariably steered counsel away from
impending peril.
As the foregoing synopsis reveals, few
if any have come better equipped to discharge the difficult tasks and responsibilities of judicial office than John Winneke.
On 7 June 1995 he was sworn in as the
first President of the Court of Appeal.
His appointment was, understandably,
greeted with unanimous acclaim from the
ranks of the profession, and particularly
those who knew him well.
Initially, the Court of Appeal had seven
members together with the President.
They were each outstanding lawyers. As
President, Mr Justice Winneke led from
the front. Throughout his time in office he
assumed a prodigious work load which few
could match. His Honour never shirked
the responsibility of writing the leading
judgment in difficult cases. In the majority
of cases in which he presided he wrote or
participated in the judgment of the Court.
To those familiar with his unique writing
style, his hand and influence can be readily discerned in a large number of the joint
judgments of the Court of which he was a
member.
As a Justice of Appeal, John Winneke
truly excelled. As the presiding judge, he
easily directed argument before him to
the central issues on which the appeal
was to be determined. He was always well
on top of the issues in the appeal from the
commencement of argument. He was a
good listener, capable of readily engaging
counsel without being overbearing. His
relaxed style invariably brought out the
best in counsel. It was truly a pleasure to
24
appear before the Court of Appeal when
his Honour was presiding.
Justice Winneke was a humane and
compassionate judge. He had a unique
skill in communicating with appellants in
person. He was able to explain to them,
in clear and simple terms, the limitations
of the powers of the Court of Appeal to
rectify what they saw as an injustice perpetrated on them by lower courts. He was
particularly concerned that appellants
in person in criminal matters were not
deterred from their progress to rehabilitation by the dismissal of their applications
for leave to appeal.
The judgments authored or contributed to by his Honour have made a lasting
and vital contribution to the jurisprudence of this State. His Honour’s profound
understanding of legal principle, his good
judgment, and his facility of expression,
resulted in judgments which are easy
to read, and which, invariably, explain
in clear terms the basis for the decision
made by the Court. He not only knew the
law, but he well understood it. Most importantly, he understood the reasons for the
legal principles which were applicable to a
case, and he understood how they applied
to the forensic realities of a trial involving
conflicting viva voce evidence. His innate
understanding of the trial processes was
particularly important when reviewing
directions by trial judges to juries. His
Honour understood the practical realities
of those directions, and eschewed any
overly technical or academic approach
to them. As a consequence, his Honour’s
judgments have been and are heavily
relied on by trial judges as the surest
guide to directing juries correctly on a
whole host of difficult matters.
Justice Winneke wrote or participated
in a large number of significant judgments,
which constitute landmarks in the law. It
is not possible to list or refer to them all.
A few examples suffice. In criminal law,
he played a key role in expounding the
fundamental principles concerning topics
such as similar fact evidence, consciousness of guilt, provocation, relationship
evidence, sentencing, and appeals by the
Director of Public Prosecutions. In transport accident and accident compensation
law, his judgments made a critical contribution to explaining and interpreting difficult pieces of legislation, onto which had
been engrafted a hotch potch of poorly
drafted reforms. Those judgments constitute object lessons in statutory interpretation. He joined in key decisions relating to
claims in tort against public officials and
police officers. His expertise in areas such
as defamation law was invaluable.
In all areas, both criminal and civil,
his Honour’s judgments are unique and
invaluable expositions of the law in the
wide variety of cases which came before
his Court. They are the combined product
of his exceptional intellect, vast learning,
good judgment, and clear expression. As
such his judgments, and his contribution to the law, stamp him as one of the
greatest jurists the State of Victoria has
produced. It is no exercise in hyperbole
to rank justice Winneke with the likes of
Dixon, Cussen, Fullagar and Smith.
His Honour’s role as President of the
Court of Appeal went well beyond his
judgments. His great personal qualities
enabled him to create a unified and harmonious court which, as a team, developed into the pre-eminent intermediate
Court of Appeal in the Commonwealth
of Australia. Under and as a result of
his leadership, the Court gained a high
reputation for the quality of its work. His
Honour never expected any members of
his “team” to do any more than he did.
He read every judgment produced by the
Court of Appeal, regardless of whether he
sat on the Court. Despite his heavy administrative burden, he nonetheless sat in as
many appeals as his fellow judges.
From his earliest days in office John
Winneke developed and maintained a
strong and productive relationship with
each of the members of the Court of
Appeal. His door was always open to
them no matter what their problem, and
irrespective of the time at which his fellow
judge consulted him. He gave an enormous amount of time to his fellow judges,
both on the Court of Appeal, and trial
judges. He always knew what the state of
each list was, and the state of outstanding
judgments in respect of appeals which had
already been heard. He appreciated and
sympathised with the effects of the workload of the Court on individual judges. His
understanding of human nature, and his
outgoing personality, enabled him to bring
out the best in all his fellow judges. His
leadership united and inspired his Court.
It is no coincidence that throughout his
term in office, only one criminal appeal,
and twelve civil appeals, from the Court
of Appeal to the High Court succeeded.
Statistics reveal that the Court of Appeal
determined finally in the order of 99 per
cent of the appellate work of the State of
Victoria during the first ten years of its
existence.
As founding President his Honour was
responsible for developing the various
procedures necessary for the functioning
of a Court of Appeal. Those procedures
enabled the court to function efficiently
and as expeditiously as its huge workload
permitted. Always conscious that the
Court belongs to the whole of Victoria
and not just Melbourne, his Honour led
the Court of Appeal to sittings in various
provincial centres throughout the State.
Those sittings were highly successful, and
were very much welcomed by members of
the local profession as well as members of
the local communities. He took the trouble to explain to those communities the
role and work of the Court of Appeal in
our system of justice.
As President, he was the architect of
many important and beneficial innovations. He did not believe in change for
the sake of change, but was far-sighted
in instituting changes which greatly
improved the administration of justice.
One example was the introduction of
applications under s.582 of the Crimes
Act, which play a critical role in streamlining the burgeoning number of applications for leave to appeal against sentence.
He periodically met with trial judges of the
Supreme and County Courts, particularly
to discuss issues involving directions to
juries in criminal trials.
Throughout his decade on the Bench,
Justice Winneke gave extraordinary and
invaluable service to the legal system.
He was awarded an Order of Australia
in 1999, and in 2004 was awarded the
Commander of the Order of Australia. His
Honour made a contribution to the law of
this State which will endure for generations. He has set the Court of Appeal on
a footing which will enable it to continue
to provide a high quality of service to our
system of justice.
His Honour has not confined his
interests in life to the law. He was an
outstanding sportsman, playing football,
cricket, tennis and golf. It was at football
that he excelled. He was best and fairest
in A-grade amateurs in 1959, and then
played with Hawthorn from 1960 until
1963. John Winneke was a member of
Hawthorn’s 1961 premiership side, the
first premiership won by that august
club after 36 years’ membership of the
Victorian Football League. He played
in the first ruck in the premiership
team, coached by the legendary John
Kennedy. It was his Honour’s role in the
second semi-final against Melbourne
which is the stuff of legends. No doubt
overcome by his Honour’s presence,
champion Melbourne centreman Laurie
Mithen “fainted” in front of the Melbourne
members. For decades, myth raged about
the incident.
Various of his Honour’s readers sought
in vain to extract a confession. One
reader, after a long lunch, nearly managed to “verbal” him. However, at the last
moment, realising the danger, Winneke
claimed it was one of his team mates who
was the culprit.
After his playing days were over John
Winneke remained actively involved
in football. He was a member of the
Hawthorn committee, and then chairman
of the VFL Tribunal. Subsequently he was
one of the founding commissioners of the
AFL Commission.
John Winneke has always been steeped
in family values. He comes from a background with a long history in the law. His
25
grandfather, Henry Christian Winneke,
was a judge of the County Court from
1913 to 1943. His father, the late Sir
Henry Winneke, was Solicitor-General
for the State of Victoria (1951–1964),
Chief Justice of the State of Victoria
(1964–1974) and then Governor of the
State of Victoria (1974–1982). His maternal grandfather was Mr Roger Wilkinson
of Home Wilkinson and Lowry. His brother
Michael was a distinguished solicitor and
was his Honour’s associate. His wife,
Sue, is a recently retired member of the
Victorian Bar. John has two sons and a
daughter. His eldest son, Christopher, is a
member of the Victorian Bar. He has five
grandchildren.
Notwithstanding his many achievements, John Winneke’s personality never
changed throughout his years in practice
or on the Bench. He is at heart a thoroughly decent and humane person, a man
of great honesty, kindness and generosity.
A modest man, he steadfastly refused
offers of a farewell by the profession.
He likes people, and people like him. He
has a wonderful sense of humour, and
is an entertaining and gifted raconteur.
There could be no better description of
John Winneke than as a “thoroughly good
bloke”.
The retirement of John Winneke as
President of the Court of Appeal marks
the end of the legal career of one of the
most unique and outstanding members
of the Victorian legal profession. He was
truly a giant in the law. His legacy and
contribution to the law was immense and
will endure for generations. The State of
Victoria and the legal profession owe an
immeasurable debt of gratitude to his
Honour. His departure from the ranks of
the judiciary, and from the Court, will be
sorely missed by so many of his friends
and colleagues. All those who knew him
so well, who worked with him, and who
appeared before him, I am sure share
in extending their best wishes to John
and Sue for a long, happy and fulfilling
retirement.
Court of Appeal
Justice John Batt
Farewell speech by Ross Ray QC,
Thursday 2 June 2005, on the
occasion of the retirement of the
Honourable Justice of Appeal John
Batt from the Supreme Court of
Victoria
M
AY it please the Court. I appear on
behalf of the Victorian Bar to pay
tribute to Your Honour’s lifetime of
professional service in the law.
Your Honour came to the Bar very
shortly after admission to practice,
remaining with Oswald Burt & Co as a
solicitor for only a little over six months.
In reading with Sir Ninian Stephen, Your
Honour became part of a distinguished
judicial line. Sir Ninian had read with
Sir Douglas Little, who had read with Sir
Norman O’Bryan, who had read with Sir
Leo Cussen — all members of this Court.
Sir Leo Cussen was appointed to the
Court in March 1906. Had the statute
not prevented it, Your Honour might
have remained another 10 months to
make the collective judicial span into a
century. However, counting Sir Ninian’s
term as Governor-General and Sir Norman
O’Bryan’s time as an acting judge, there is
a full collective century of distinguished
judicial and public service.
Your Honour developed a wide and formidable practice at the Bar. The SolicitorGeneral has referred to Your Honour’s
prosecution of Christopher Dale Flannery
and Laurence Prendergast for rape,
obtaining fresh convictions over those set
aside on appeal.
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26
Your Honour had a broad commercial
practice, including corporate regulatory
and investigative cases, and commodities
cases from potatoes to iron ore, and from
milk to tobacco. Your Honour practised in
equity, trusts and contracts, and in general law. You had many taxation cases.
You received a brief from the
Commissioner in one case shortly before
the due date for filing personal income
tax returns. The materials in the brief
were a full trolley load of documents. It
was clear that, even with Your Honour’s
extraordinary industry, it was not possible
to complete both tasks in a timely fashion.
Your Honour applied for an extension
in lodging your personal return. It was
refused. Your Honour then promptly
advised your instructors to make arrangements to collect the trolley of materials.
The timely lodging of your tax return was
a legal obligation. You could not do both,
so you saw no option but to return the
brief.
By immediate return communication,
Your Honour received an extension on filing your return, and the request please to
retain the brief.
Your Honour’s five readers were, with
respect, a rather eclectic lot — Pritchard,
Kennon QC, Bolton, Emmerson QC and
Gunst QC. Bolton’s jeans and Kennon’s
entrepreneurial activities were not in
complete harmony with Your Honour’s
vision of a barrister.
Your Honour’s tutelage was by example and, although none of your readers
regularly wear detachable collars, Bolton
is rarely seen in jeans in chambers, and
has never been seen in jeans in court. Nor
have Kennon’s modest entrepreneurial
activities been a distraction in his professional life.
All Your Honour’s readers testify to the
rich educational experience of reading in
your chambers. Your Honour worked hard
at the Bar, and expected the same of your
readers, and juniors.
One junior recalls Your Honour appointing a conference for 5:30 am. You’d both
only got into the rickety Perth airport
motel at midnight — 2 am, Melbourne
time. Preparation had been intense all the
previous day in Melbourne, and you had
both spent the flight hand-writing documents and submissions.
Alas, the rather spartan motel had
neither alarm clocks nor an early morning
call service. At 5:30 am, Your Honour was
ready, but your junior was not in attendance. You sent your instructor to knock
on his door, which woke him, and brought
him to work, albeit 10 minutes late. You
had a 6:30 am flight on to Paraburdoo.
Like all who have been your juniors, he
speaks of the enormous debt of gratitude
for knowledge shared, and lessons learned
— including that of packing a travelling
alarm clock.
The editor of the Federal Court
Reports and of the Federal Law Reports
credits Your Honour with having set the
standard of excellence in law reporting.
Each headnote published in Your
Honour’s year as editor of the FCRs was a
jewel. The crown of published jewels that
year was modest. However, they set the
standard.
Mr Kline worked closely with Your
Honour: first as an employee of LawBook;
then as co-editor of FCRs; then with Your
Honour as consultant editor. He consulted
frequently, and Your Honour always made
yourself available and gave prompt and
valuable advice.
Your Honour was a stern, but always
scrupulously fair, opponent. You were
once opposed to a litigant in person. The
case was before Mr Justice Mclnerney,
also notorious for his scrupulous fairness
to parties who failed to appear, or who
represented themselves.
Your Honour and Mr Justice Mclnerney
reputedly outdid one another in scrupulous fairness. All the bemused self-represented litigant had to do was to sit quietly
while the two of you won his case for him.
Your Honour is devoted to your family.
In a time when not all fathers attended
the hospital at births, Your Honour did so.
Your son David cherishes the knowledge
that you were at the hospital awaiting
his arrival — and drawing submissions
in Prosser v Twiss while you waited — a
testator’s family maintenance case significant enough to be reported in those days
of selective reporting when there was only
one slim annual volume of the VRs.
The early introduction of your children,
David and Carolyn, to the Commonwealth
Law Reports — annotating them for
pocket money — paid handsome dividends. They each went on to graduate
in law with first class honours, and David
with a first class Master’s degree from
Cambridge. David is now at the Bar, and a
reporter for the CLRs.
Carolyn, after being at Blake Dawson
Waldron, turned to journalism. In 1999,
she won the Columb Brennan Award for
Excellence in Court Reporting. She lives
in the Hague and writes occasionally for
the Daily Telegraph.
Your Honour served as a director of
Barristers Chambers Limited for some 11
years, and as the Bar representative on
the Chief Justice’s Supreme Court Rules
Committee for some three years.
Your Honour is renowned for excellence, and meticulous attention to detail.
I can’t say that, even in translation, The
lliad is beside my bed. However, a short
passage from the speech of Glaucus
to Diomedes is surely apposite. The
Solicitor-General has ventured into Latin.
I hope Your Honour will be tolerant of my
attempt at pronouncing ancient Greek:
For the benefit of probably all but Your
Honour and David (who, like Your Honour,
also won the exhibition in Ancient Greek
I), I explain and translate. Glaucus was
telling his Greek enemy Diomedes the
precept he had from his father: “Always
to be excellent and pre-eminent above
others.”
Your Honour’s excellence and pre-eminence have always been without the martial swagger of Glaucus. A notable, and
characteristically courteous and discreet,
example is in Your Honour’s remarks
at your welcome to this Court. Justice
Hansen had told the story of Hedley v
Roberts.
Your Honour had been in the Practice
Court, modestly waiting your turn.
Suddenly, the judge called upon Your
Honour for assistance in translating two
obscure Latin maxims — a public oral
examination in unseen passages.
The judgment credits Your Honour with
the translation. However, the translations
are juxtaposed so that the translation of
one is attributed to the other. In your
remarks at your Welcome, only in ancient
Greek, did you refer to the transposition.
I shall not attempt the Latin, but shall
close with the translation of a particularly
apposite passage from Marcus Tullius
Cicero’s oration in defence of the poet
Archias:
These [literary] studies are the food of
youth, and consolation of age;
They adorn prosperity, and are the comfort
and refuge of adversity;
They are pleasant at home, and are no
encumbrance abroad;
They accompany us at night, in our travels,
and in our rural retreats.
May Your Honour enjoy the learning
from your varied studies at home and
abroad, in travels, and perhaps in rural
retreats. On behalf of the Victorian Bar,
I wish Your Honour a long, satisfying
and happy retirement. May it please the
Court.
27
Obituaries
Louise Crockett
A
T the outset of what I wish to say
this morning let me refer to and
quote part of, and a few phrases
which I take from Ecclesiastes – Chapter
3, which is the first Reading this day,
Verses 1–8.
To everything there is a season and a time
to every purpose under the heaven.
A time to be born, and a time to die
A time to weep, and a time to laugh
A time to mourn
A time to keep silence, and a time to speak.
As I stand here, I have a very strong
feeling that Louise is saying to me: “Come
on, get on with it. People have important
matters to attend to. It’s Friday and lunchtime is approaching.”
Louise was born on 13 April 1961, only
44 years ago. I was informed of her birth
and the joy that it brought to Anne, Bill,
Rosemary, Peter and Robert on that very
day.
I was a young barrister reading in the
chambers of one of the leading juniors
of the Victorian Bar, Louise’s father Bill
Crockett. At that time his chambers were
in Selbourne Chambers.
To my recollection the news was delivered in a very matter of fact way, and dealt
with among the many matters that he was
attending to that day, which were probably that he held four briefs for trial and
not necessarily in the same list.
At that time Rosemary was nine years
old, one can only imagine the excitement
28
of a nine-year-old little girl, who looked
forward to helping her mother care for
and look after the new baby sister, a
task and pleasure Rosemary maintained
throughout Louise’s life right to the end.
She attended medical appointments with
Louise and Andrew, when Louise became
sick. She quietly ensured that when
Louise was in hospital, the nursing staff
gave Louise the best care and attention.
So it was from the outset that I had the
privilege of observing and being aware of
Louise’s life, sometimes from a distance,
sometimes from much closer. I observed
this “chirpy” young lady, somewhat
demanding at times but always adored by
her family, her husband Andrew and Katy
and Sarah.
Louise attended Ruyton Girls School
from “kinder” to year 12. When the
Crockett family were living in Toorak
this involved her travelling on the famous
Glenferrie Road tram. Although small in
stature I am sure that she would have
made her presence felt.
In the year 12 exams, Louise’s professional future began to emerge. She was
marked in the very high 90s for what I
think was then called Legal Process. This
led her to study law at Monash. In 1981
she graduated with the degree Bachelor
of Arts. And in 1983 she graduated as a
Bachelor of Laws.
Although Louise completed her studies
for her arts and law degrees in 1981 and
1983 respectively, as is usual she did not
graduate until the following year in each
case, being 1982 and 1984.
I am told that whilst studying at
Monash she unsurprisingly possessed
many qualities: she was a bundle of
energy; she was self-assured and purposeful. She was punctual for this was always
important to her.
She drove the cleanest blue Honda
Civic to grace the student car park. At
student parties and 21st birthdays her
flare for style and fashion was to the fore.
Her presence was regularly accompanied
by, I am told, rustling taffeta.
It was not until her 21st birthday party
that it was revealed that at one exam she
happened to not be accompanied with the
book of statutes to be taken in to the exam
— she passed in any event.
Having graduated Louise was articled
to Mrs Di Davis of Stedman Cameron,
Solicitors. She then followed in her
father’s footsteps and joined the Victorian
Bar, where she joined the Dever List.
She commenced reading with John
Ramsden, now a Judicial Registrar on the
Family Court, on 1 September 1985, and
she signed the Bar Roll on 21 November
1985.
Before briefly looking at Louise’s professional career, let me remind you of
Louise the lady, the wife, the mother, the
friend and companion.
Some 20 ago this March Louise met
Andrew Bristow. She adored him and her
love was returned; it was not always easy
though.
One evening when Andrew was
spending some time saying his farewells
to Louise, just inside the door of the
Crockett apartment they were confronted
with Louise’s father holding his chest and
suffering severe chest pains. Andrew
took Bill to hospital in his car. The next
day after being discharged from hospital,
Louise berated her father, telling him that
her courtship would never flourish if he
was going to do things like that.
Louise and Andrew were married
at the Chapel of St Peter, Melbourne
Grammar School, on 30 March 1990. The
marriage for Louise had to be perfect
– she drafted and redrafted the Order of
Service eight times. Although it has been
fashionable for the bride to be a little late,
Louise appeared with her father and the
bridesmaids one hour late.
The florist had failed to deliver the
flowers on time. After 20 minutes Bill was
for forgetting the flowers. Not Louise. She
refused to budge, notwithstanding her
father’s advice. The bride and her attendants carried flowers when they arrived at
the church. Andrew never had any doubt
that she would appear. But you can just
imagine the concern of many others.
The marriage of Louise and Andrew
was always bound with love. It was
enhanced by the birth of Katy now 14
and Sarah now 12. Both girls attend
St Catherine’s School. Katy is able
to steer a racing 8 as straight as an
arrow, and Sarah I am told, would be able
to correct any variance in the course of
the eight by giving instructions in fluent
Japanese.
The love and affection and flair for
fashion brought to Louise by her mother
Anne was carried to the next generation. She loved her girls dearly and was
proud of their many achievements, this
was evident to all. The need for the ladies
Bristow to have their many fashionable
pieces accompany them at all times, even
to Noosa, has necessitated the hiring of
a station wagon and the maintenance of
strength by Andrew.
Louise was a sensational hostess. Her
dinner parties at home are well remembered and especially her passionfruit soufflés. They always rose. Andrew recounts
presents given by her were beautifully
wrapped. Andrew’s comment to me was
that Louise could have been a present
wrapper at David Jones.
She was a great raconteur and story
teller. She once recounted the occasion
when she appeared for a woman at the
Frankston Magistrates’ Court. Her client
told her that her uncle was a QC. Louise
having regard to the nature of her client
and the charge she was facing, well realised why she had been briefed and uncle
was not leading her.
Louise was curious and pursued the
matter with with her client to ascertain
who was the uncle. She eventually was
told by her client that the uncle, the QC,
was a Quality Controller.
She was a great and true friend. When
she spoke to you, you were the only
person in the room with her. Louise was
a lady always prepared to express her
view and to back it up with reason. On
one occasion she wrote to the Queen
expressing her view on a matter relating
to Princess Diana. She was very proud of
the reply she received from the Queen’s
Lady in Waiting.
On another occasion she wrote to a
person who was also suffering from cancer. She did not know him directly. She
wrote to help him, which it did significantly. He was greatly supported by her
encouragement.
One weakness she had was for chocolate. I am told by one of her colleagues
that in the top drawer of her desk in
Chambers there was to be found Haigh’s
chocolate-coated scorched almonds and
licorice allsorts.
I should add, having regard to the season, that Louise was an avid Collingwood
supporter. On last Sunday she watched on
TV the early part of the game.
Louise fought hard not to let her illness
interrupt or interfere with her life with her
family. It was only recently that she had as
a guest in her home an exchange student
from America in order
to repay the hospi��
tality that had been extended to Katy.
Let me now briefly return to Louise’s
professional life. Her work at the Bar was
mainly in the Family Court. She was an
outstanding barrister. In her work she
demonstrated her fine intellect. She never
went to court without her client’s case
being fully prepared. She would become
short with opponents who sought to have
a case stood down supposedly to negotiate, but merely to better confer with his
or her client.
A colleague who had been at Monash
with Louise and was a fellow barrister,
said to me, “Louise may have been short
in stature, but she was tall on skills and
reputation.”
A senior Judge of the Family Court told
me that the Judges of that Court trusted
her and could rely on her to have prepared
her case and that when she herself came
onto the Bench and saw Louise at the Bar
Table she was always pleased, because
she knew the case would have been fully
prepared and would be addressed by a
very fine intellect and skillful advocate.
She told me that Louise was held in great
affection by the Court and will be deeply
missed by it.
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29
Louise, from her mother, showed in
her life the unbounded love and support
she gave for her husband and children,
which was so important to her. She also
inherited from her mother her flair for
fashion and style. From her father, she
inherited a fine intellectual ability, a little
feisty at times when necessary, her skill as
an advocate, her dedication to her profession and her love for the law.
Perhaps in racing terms Louise the filly,
although small had a beautiful temperament, never ran a bad race and always had
the heart to run on to the finish.
Perhaps that which I have been seeking
to do today in briefly describing Louise’s
life was summed up in one of the death
notices published on Wednesday which
described Louise as a person with:
“A sharp intellect
A wicked humour
And a strong will.”
We will all miss her dearly. But we will
all be strengthened by our memories of
her, the example that she set us, the deep
love that she gave to her family, and her
strong desire for us to go ahead with our
lives.
For sentimental reasons tomorrow I
will watch the run of the filly “Dinkum
Star” in the William Crockett Stakes at
the Valley.
Allan McDonald
Sam Duband
His service with Owen Dixon Chambers
spanned 15 years from 1985 to 2000 and
was both his principal period of corps
employment, and the last before his
retirement.
He passed away on 13 August 2005.
His funeral at Springvale Necropolis on
15 August was well attended. The Jewish
Ex-Servicemen’s Association provided an
appreciation of Sam’s army service, and
his long and valuable connection with
the Association from World War II. He
served in the Signal Corps in Papua New
Guinea from 1941 to 1943, and retired to
Australia following an injury (broken leg).
The servicemen in attendance at Sam’s
funeral placed poppies on his coffin as a
final tribute.
To his colleagues and to me he was
a kind and generous person who never
spoke ill of anyone. He will be remembered as our oldest working commissionaire and as a great man among men.
S
AMUEL Duband joined the Corps of
Commissionaires (Victoria) Ltd on
16 September 1981. During his 24
years of membership he served in many
areas including function centres and
the Victoria Racing Club at Flemington.
Signing the Bar Roll, 3 August 1948
T
HIS photo shows a number
of eager young men signing
the Bar Roll on 3 August 1948.
Pen City has offered to provide
a Sheaffer Lacquer Fountain
Pen to the first correct entry
opened by a member of the Bar
who has correctly named all
the people in the picture.
Good Luck.
30
News and Views
Trouble in Paradise
Raymond Gibson
Raymond Gibson, formerly a Crown Prosecutor
in Victoria, is currently on a two-year assignment
as Deputy Director of Public Prosecutions in
Fiji. Our man in Fiji describes below a recent
case where Church and State appear to collide
in the Fijian Constitution. He does not intend to
express any particular view about the proceedings
reported on; but in so far as any view is expressed
or implied, it is the writer’s own and does not
represent any views held by the Office of the
Director of Public Prosecutions in Fiji.
Raymond Gibson.
F
IJI has a reputation as a relaxed
Pacific nation with great snorkeling,
palm-lined beaches, friendly people… and cheap baby-sitting. Most tourism here is resort-based, with tourists
enticed to leave the sanctuary of the hotel
to go on expensive fishing charters or
mandatory “village visits” where you can
drink kava out of coconut shells (bilos)
with the village chief. However, an enticement of another kind also exists.
The transsexual and gay prostitutes,
who hiss at gutter crawlers along dirty
unlit streets, might not decorate the holiday brochures and websites promising a
tropical island paradise, but they exist
only 100 metres from the international
hotels in downtown Suva. The tourists
have found them even if they don’t rate
a mention in tour company’s advertisements.
Thomas McCosker, aged 55, probably knew there was something of a gay
scene in Fiji (however undercover) when
he booked his return ticket there from
Melbourne. What he didn’t reckon on was
that homosexual relations in Fiji were subject to severe laws and he would end up
serving a two-year gaol sentence.
The retired teacher arrived in Nadi on
20 March 2005 for a two-week holiday. He
met up with Dhirendra Nadan, aged 23,
a tall, slim, Indo Fijian. The two retired
to McCosker’s hotel room for a number
of days, engaged in sexual activity, and
McCosker took some photographs to
record it. Relations turned sour. There
was allegedly some discussion between
the two over Internet postings of photographs taken and a disagreement over
money. At the end of his vacation, on
3 April, McCosker, rather naively went
to the police stationed near the Nadi
International Airport claiming that Nadan
had stolen AUD$1500 from him. After laying his complaint, he went to the airport
The transsexual and gay
prostitutes, who hiss at
gutter crawlers along
dirty unlit streets, might
not decorate the holiday
brochures and websites
promising tropical island
paradise, but they exist
only 100 metres from the
international hotels in
downtown Suva.
and checked-in for his flight home, no
doubt comfortable in the knowledge that
the Fijian justice system would take its
course.
The police investigated the complaint
with impressive haste. Nadan was picked
up and taken directly to the airport’s
police post. He was interviewed (always
recorded in Fiji by hand) whereupon a
more detailed picture emerged. He told
police that McCosker had taken nude photographs of him and that the two men had
engaged in oral and anal sex. He said that
McCosker had reneged on an agreement
to pay him modelling fees after the photos
were published on the Internet. His hopes
of a good earn from becoming a cyber
porn star had come to nothing.
Meanwhile, McCosker was quietly
relaxing in the airport’s transit lounge.
He was approached by police and asked
to assist with their inquiries. He had little choice. He confirmed some of the
essentials of Nadan’s story and his digital
camera was seized. It contained enough
evidence to convict him. Many of the
explicit images showed the couple having
sex (tendered to the Magistrates’s Court
as Exhibits 1–18).
Both McCosker and Nadan were
charged under two provisions of Fiji’s
Penal Code (“Code”) ss.175 and 177. The
31
first allegation was one of “… permitting
carnal knowledge of the other against
the order of nature”, (s.175 sodomy). It
carries a 14-year gaol sentence, with or
without a flogging. The second was one
of committing an “… act of gross indecency”, between males (s.177). It carries
a five-year sentence, again, with optional
corporal punishment.
Although delays in the criminal justice system in Fiji are endemic, there
were none here. Two days later, each
of the accused appeared unrepresented
before Resident Magistrate Shah in Nadi.
McCosker believed he would simply get a
fine and would then be able to return to
Melbourne. With a little encouragement
from the police, he and his accomplice
both pleaded guilty to the two offences,
despite the absence of counsel and full
disclosure of the prosecution brief.1
After the police summary was read to
the court, the Magistrate took a dim view
of their behaviour declaring it to be “…
something so disgusting it would make
any person vomit”. Though Nadan was
23, the Magistrate said to McCosker, “If
you wanted to have fun, you should have
stayed in Australia instead of trying to
come to Fiji and exploit our young boys.”2
Each defendant received 12 months’ gaol
for each of the two offences charged (sodomy and gross indecency). The sentences
for each defendant were to run consecutively.
Appeals were filed in the High Court
against conviction and sentence and both
men were granted appeal bail in the High
Court by Govind J. On 15 August 2005,
the matter was heard in Suva before
Justice Gerard Winter, an expatriate New
Zealander with a background as a naval
legal officer, and a judge not shy of a good
legal argument.
Despite being a conservative and deeply
religious country, Fiji has a Constitution
that is progressive by world standards.
Unlike Australia, the Consitution contains a Bill of Rights. Enacted in 1997,
the Constitution survived the assault
upon it when George Speight and his
cohorts stormed Parliament on 18 May
2000 and took the Opposition prisoner
for 56 days.3 The nation has also ratified
the International Convention on Civil and
Political Rights.
Aside from an argument about the
pleas of guilty in the Magistrates’ Court
being equivocal, the central question for
Winter J was whether the Code provisions breached those in the Constitution
guaranteeing both the right to privacy and
equality before the law. 4
32
At the appeal, the Human Rights
Commission represented by Dr Shameem
was joined as a party, as was the AttorneyGeneral. Ms Khan represented the appellants. The Human Rights Commission
supported the appellant’s argument
that the Code provisions offended the
civil rights of the appellants under the
Constitution. The Attorney-General supported the State (DPP), represented by
Mr Tunidau, in arguing that the appellant’s constitutional rights were limited on
public interest and moral grounds.
Despite being a
conservative and deeply
religious country, Fiji
has a Constitution
that is progressive by
world standards. Unlike
Australia, the Consitution
contains a Bill of Rights.
As the Constitution’s preamble recognises that Fiji is a Christian country, and
that such values underpin the society, Mr
Tunidau argued that any interpretation of
the provisions had to be constrained by
Christian morality. Logically, it followed,
although barely touched on in argument,
that Christian morality proscribed all
homosexual sexual relations. This seemed
to be accepted by all without question.
Stressing a peculiar “Fijian interpretation” of the Constitution did not impress
Winter J. Nor did the argument that the
appeal should be adjourned to allow
affidavits to be submitted from members
of the main religious faiths practicing in
Fiji.5
THE CHRISTIAN CONTEXT
It could not be overlooked that the
Constitution had an overtly Christian flavour. Winter J accepted the fact that most
ethnic Fijians generally regard themselves
as Christians, with approximately 80 per
cent belonging to the Methodist faith. This
issue was relied upon by State counsel and
had to be addressed by Winter J.
He accepted that Christianity framed
the Constitution. Article 5 acknowledges
that worship and reverence of God are the
source of good government and leadership. However, Fiji was a secular state in
which there are many faiths and beliefs.
He was not prepared to find that the
Constitution was pillared upon Christian
values alone. The Constitution as a whole
reaffirmed human rights and the fundamental freedoms of individuals. He then
turned to the Bill of Rights.
PRIVACY
Winter J found that the State had no business in the bedroom. Both Code offences,
therefore, were invalid as they applied to
acts of consenting adults in private. “I find
this right to privacy so important in an
open and democratic society that the morals argument cannot be allowed to trump
the constitutional invalidity.”6 He relied on
extensive international case law as well as
on a finding by the United Nations Human
Rights Committee in 1994 that similar
laws were invalid in Tasmania.7
As a former British colony, Fiji had
adopted much of its Code and its antigay laws from Britain. However, the
Mother Country had repealed such laws
in the 1960s following an extensive review
from the Wolfendon Committee, which
noted, “… there must remain a realm of
private morality, which is, in broad and
crude terms not the law’s business. To
say this is not to condone or encourage
private immorality.”8 Fiji’s ratification
of the International Convention on Civil
and Political Rights created a “legitimate
expectation” that it’s penal laws would be
interpreted subject to that convention.
Here Winter J relied on the High Court
of Australia case of Minister of State for
Immigration and Ethnic Affairs v Teoh
(1995) 128 ALR 353. In that case, the
High Court decided that a State’s ratification of any international treaty created a
“legitimate expectation” to the world, and
to the Australian people, that the executive government and its agencies would
act in accordance with the treaty.
The State argued that to invalidate
the charges would leave victims of male
rape or sexual violence unprotected. His
Lordship countered by finding that the
common law still had adequate offences
to cover such criminality and there were
other Code provisions that could be
applied.
EQUALITY
The State argued that s.175 (sodomy)
applied equally to both males and females
and, therefore, did not discriminate
between the sexes. Moreover, it was
neutral in terms of sexual orientation.
The appellants argued that it was discriminatory as it only applied to gay men
and criminalised their primary sexual
expression. In practice, however, Winter J
found that the law was applied selectively.
State counsel could not come up with any
cases where heterosexual couples had
been charged under s.175. Ultimately, not
much turned on this, as the section was
invalid, in this case, as it breached the
right to privacy.
Section 177, which criminalises acts
between males in public or private,
described by the legislation as “any act of
gross indecency”, was regarded as offending against a male right to equality before
the law. Section 38(1) of the Constitution
states simply “Every person has the right
to equality before the law.” Subsection
(2) prohibits discrimination directly or
indirectly on the ground of sexual orientation as well as the usual other grounds
like gender, race and age. Defining equality is not as easy as it seems. Winter J
preferred to see it in terms of “… creating
symmetry in the lived out experiences of
all members of society by eliminating the
unequal consequences arising from differences.”9
Such an approach was not too far
removed from that discussed by the
Victorian Court of Appeal in DPP v Ellis
although, in a different context.10 In that
case, the differential treatment at sentencing of a female teacher, Karen Ellis,
who had repeated sexual relations with
her male teenage pupil, compared to
the high profile gaoling of a male tennis
coach, Gavin Hopper, who had a sexual
liaison with a female student, offended
against the principle of equality before the
law. The female teacher, Karen Ellis, had
been given a wholly suspended sentence;
Hopper, five years in gaol. The “unequal
consequences” of similar behavior demonstrated that equality before the law was
breached. 11
Although urged to go further by Ms
Khan, for the appellants, to strike down
the provisions entirely, Winter J felt constrained by the Constitution, and refused
to do so. His Lordship regarded the appeal
as having limited scope, finding it was not
his function to act as a self-appointed law
reform commissioner. He did, however,
urge a wholesale review of the Code
relating to sexual offences, which contain
many archaic provisions.12
CONCLUSION
Winter J’s judgment affirms the primacy
of the Constitution as the supreme law in
Fiji. Although acknowledging that many
members of the community in Fiji may
be shocked and disturbed by homosexual
activity, he was not prepared to temper
the Constitution provisions that enshrine
diversity and equality. Indeed, his final
remarks relating to the spirit of the
Constitution were intended to underscore
the importance of tolerance in a diverse
community.
Ethnic divisions have rocked this
small nation during the coups of 1987
and 2000. While some see both coups as
being caused by indigenous resentment
over the perceived economic or political ascendancy of the Indo Fijian community, there is no doubt that the word
“tolerance” plays a major part in current
social dialogue. This is particularly so
given the Fijian government’s aim to enact
the Reconciliation Tolerance and Unity
Bill which seeks, if passed, to create a
mechanism to grant full amnesty to those
convicted of coup or politically related
offences.13 The word “tolerance”, in that
context, has been enlisted by both sides of
the debate surrounding the merits of the
proposed Bill.
The reaction to Winter J’s judgment
indicates that not all are tolerant or permissive of sexual diversity, particularly
as it relates to homosexual relations.
Two days after the judgment, the Fijian
Sunday14 newspaper carried these
remarks on the front page (attributed
to Methodist Church General Secretary
Ame Tugaue):“We do not condone such
behavior between two males and this is
not what the morals of the Bible teach us
… The first wedding on earth was officiated by God and that was of Adam and
Eve, such decision [sic] is not allowed by
the Christian faith.”
Ame Tugaue is not the only one to
condemn the judgment. The AttorneyGeneral has also indicated his dissatisfaction with the decision.
Will it be possible for Fiji to retain its
conservative moral code when it is, argu-
ably, at odds with its modern Bill of Rights
and adherence to United Nations conventions on human rights? The attachment
of the people to the three major faiths
in Fiji, Christian, Moslem and Hindu, as
well as a culture centred on simple family
and village life, make tolerance of Thomas
McCosker’s Fijian vacation activities difficult to accept, whatever the Constitutional
provisions might be.
(At the time of writing the appeal
period had not expired and it was not
known whether an appeal to the Fiji Court
of Appeal would be filed.)
Notes
1. Full disclosure to the accused in a criminal
case is required under Article 29 of the
Constitution (Amendment) Act 1997
(Fiji).
2. “Australian Gaoled in Fiji for Gay Sex”
Fairfax digital, www.smh.com.au.
3. See generally Speight of Violence
— Inside Fiji’s 2000 Coup, Field M et al.
Reid Books, 2005.
4. See Articles 37 and 38 Constitution
(Amendment) Act 1997 (Fiji).
5. Nadan & McCosker v State Criminal
Appeal Case Nos: HAA 85 and 86 of 2005
p.10.
6. Ibid. p.20.
7. Toonen v Australia (common no. 488/
1992, 31 March 1994, 50th Session, UNHR
Committee … No CCPR/C/50/D/488/1992.
IIHRR97.
8. Ibid. p.15.
9. Ibid. p.21.
10. [2005] VSCA 105.
11. Hopper received five years with a threeyear minimum term on 2 August 2004 in
the County Court at Melbourne. See Fairfax digital, www.theage.com.au.
12. Winter J recommended one all-embracing
offence covering all forms of non-consensual or predatory sexual behavior. Ibid.
p.9.
13. Bill No. 10 of 2005. The Bill is currently in
before a Fijian Parliamentary Committee
and is expected to be passed later in 2005.
14. Sunday, (Sun (Fiji) News Limited) 28
August 2005 p.1.
THE ESSOIGN
Open daily for lunch
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Great Food • Quick Service • Take-away food and alcohol. Ask about our catering.
33
News and Views
Life in the Solomons
Simon Cooper
As I flew from Brisbane to
Honiara, the capital of the
Solomon Islands, in July last
year, I was making my way to
a country that until recently
had been a source of ethnic
tension and mass murders. As
we approached the capital, we
flew over the main island of
Guadalcanal, giving me a view
of the densely forested terrain
that swept all the way from the
remote southern Weathercoast
region of the island to the
northern shores.
I was met by the friendly
Simon Cooper.
and familiar face of Chris
Ryan, my colleague in Prosecutors Chambers in
Melbourne, who had been in the Solomons for
about a year. We had led remarkably similar lives
in the law, having been articled in the same year
to city firms only a stone’s throw away from each
other, then admitted to practice together in 1980.
We had spent our formative years at the Bar on
Ric Howell’s List, and regularly kept each other
company travelling around the suburbs doing
crash and bash and small crime in Magistrates’
Courts. After being retained on a regular basis for
the Crown we were both subsequently appointed
A
game plan had been devised by
Chris before he departed that Rob
would essentially be responsible
for prosecuting the main MEF matters
whilst I would take on the prosecutions
involving Keke’s GLF. By September the
High Court was beginning to hear trials
again after a substantial break, and with
the Magistrates’ Court still operating on a
daily basis the office was under pressure
to keep the process of criminal prosecutions moving. Before he left Chris had set
up the office so that it could deal with the
vast workload as efficiently and produc34
Crown Prosecutors. It seemed
hardly surprising that our
lives were sharing yet another
common theme. Whilst Chris
would be returning to Australia
in four weeks’ time I was just
beginning an 18-month period
as a Crown Prosecutor in the
Solomons.
Our attendance in the
Solomon Islands was part of
the Australian Government’s
commitment to rebuilding the
region following the recent
conflict. The two groups mainly
responsible for the violence and
economic breakdown were the
Guadalcanal Liberation front (the GLF) and the
Malaitan Eagle Forces (the MEF). Their activities
had prompted many governments in the region
to have concerns about the stability of the area
politically, economically and socially.
The GLF had been established at the end
of the 1990s. Its leader was Harold Keke, and
its main bases were located in the remote
Weathercoast region. Fighting had become more
widespread between the Isatabu, the indigenous
people of the island of Guadalcanal, and the
increasing number of economic migrants from
tively as the administrative problems that
plague the Solomons would allow. Soon
after he departed I had my first taste of
how some of these problems could disrupt
the daily routine.
One morning I discovered that the
phones had been cut off. This meant that
the office had no effective means of communication, and our internet line, which
had been connected only the week before,
had suffered the same fate. My only option
was a trip to the Ministry for Police,
National Security, Justice and Legal
Affairs, whose office is located on the
fourth floor of the Anthony Saru building
in central Honiara. Our secretary Margaret
told me that this problem was a common
occurrence. On arriving at the Ministry I
was informed that their phones were also
down. The problem was easy to identify
— the Telekom bill had not been paid. As
I left the office, I saw Victoria Aitken, the
Deputy Legal Draftsmen in the AttorneyGeneral’s Office, which is situated on the
same floor, who told me that they too had
suffered the same fate.
A more circuitous process for paying
an account could not be imagined. The
the neighbouring island of Malaita. The GLF
was opposed to the incursions of the Malaitans
in Guadalcanal and sought to establish greater
rights for the indigenous islanders through
violent means. The Malaitan Eagle Force, which
employed criminal methods and intimidation to
attain its ends, counter attacked, and in June
2000 took over Honiara and maintained control
through the use of force and standover tactics.
In 2000 the governments of neighboring
countries intervened to try to bring to a peaceful
end the civil unrest that was tearing Guadalcanal
asunder. The various factions involved in the civil
unrest, or the “tensions” as they were commonly
referred to, were invited to sign the Townsville
Peace Agreement (the TPA). The GLF refused
their invitation to take part in the peace process,
and continued to engage in acts of insurrection
and violence on the Weathercoast. Whilst things
settled down in Honiara after the signing of the
TPA, on the Weathercoast Keke’s reign of terror
continued.
The Regional Assistance Mission to the
Solomon Islands (or RAMSI), an alliance of
governments from Australia, New Zealand and
the Pacific Islands, was formed to assist the
ravaged state at the request of the Solomon
Islands’ government. In July 2003 large numbers
of police, administrators and army personnel,
accounts for the water, electricity and
Telekom bills for the DPP’s Office are
issued monthly and sent to the DPP’s
Office. They are then sent to the Ministry
and the Ministry sends them to the
Department of Finance. The Department
of Finance then has to forward payment
to Telekom. The Telekom account is inevitably late, and if the bill is not paid by the
due date Telekom cuts off the phone. This
in turn necessitates personal attendance
at the Ministry because communication by
phone is of course impossible.
On day one I was unable to make
mainly from Australia and New Zealand, arrived
to help restore the rule of law, make the streets
safe to walk in and assist the ailing economy.
The Solomon Islands Law and Justice Sector
Institutional Strengthening Project was funded
by Ausaid, and involved providing advisors to
the police prosecutions branch to enable them
to better manage and prosecute matters usually
prosecuted in the Magistrates’ Court. Prison
advisors were also appointed to assist in the
administration and management of the prison
service. Australian barristers were provided to
run the major cases in the Magistrates’ Courts
and conduct the substantial trials in the High
Court that arose out of the intervention of
RAMSI and the charges that followed relating to
crimes occurring during the tensions. The Public
Solicitors Office was staffed mainly by Australian
lawyers and they had the responsibility for family
and civil matters as well as criminal matters.
The Director of Public Prosecutions was
Francis Mwaneswala, since appointed a High
Court Judge, and his deputy was Ronald Bei
Talasasa. There were two local advocates in the
office, Samuel Balea and Henry Kausimae. Rob
Barry, Nick Goodenough, John Cauchi, Chris
and I were the foreign advocates. However, with
Chris, Nick and John about to leave we were
about to be placed under an increasing workload.
any headway. On day two I went to the
Ministry again, this time with one of our
secretaries, Margaret, as her first language
was pidgin, which I hoped would help.
Only one of the two lifts was operating.
Margaret told me that this lift would not
stop on the fourth floor, and I assumed
this had probably been the case for some
time. We decided to take the lift to the
fifth floor and walk down one floor, but
as soon as the lift doors closed, we were
plunged into complete darkness. I had of
course tempted fate by saying to Margaret
as we got in that as long as it got us to the
fifth floor all would be well. The lift recovered its progress but not its lighting, so we
made it to the fifth floor and walked down
the stairs.
The Attorney-General’s Office is also
located on the fourth floor on the other
side of the Ministry. On the door outside
the Attorney-General’s Department a
sign warns those who enter: “No Betel
Nut”. This refers to the perennial habit
of the vast majority of the population to
engage in chewing betel nut, a central
aspect of Solomon Islands culture. Most
Solomon Islanders form the habit from a
35
“Forging every stream” on the
way to a view at Marasa.
Local kids at Marasa on the
Weathercoast.
Paul Bannister (Qld barrister) and Simon Cooper at the Weathercoast prior to holding a conference
with Solomon Island witnesses.
very early age. The betel nuts are “palm
nuts” obtained from the Areca tree. They
are encased in a husk and vary in size
from a thumbnail to a fist. The husk is discarded and the nut then chewed. The nut
contains arecoline, a mild central nervous
system stimulant. Its widespread availability and use in many Asian counties and
cultures, makes it the most widely used
stimulant in the world. Its regular use
stains the mouth, gums and teeth a deep
red. When used to excess it can lead to
inebriation and dizziness. Walking around
the streets of Honiara you readily observe
the individuals who are heavy users as
they smile at you through heavily stained
teeth and lips that appear as though they
have had a recent and heavy application
of lipstick. The chewers spit their saliva as
they chew the nut, staining the footpaths
and gravel pathways.
While the Attorney-General’s Office
banned the practice, the Ministry was
somewhat more encouraging to the
betel nut chewers. There were no signs
forbidding it, and inside the door was a
cardboard box serving as a repository for
those who had enjoyed a chew and wished
to dispose of the husks of the nut. Why
was there such a contrast in policy by two
geographically and strategically proximate
government departments? I suppose that I
shall never know.
As Margaret and I entered we caused,
according to Solomon Islands standards, a flurry of activity. The accountant
liaised with the Chief Accountant who
then liaised with an accountant in the
Department of Finance. This was obviously not sufficient as the accountant then
36
liaised with a financial advisor. This process took about 45 minutes, after which I
said that we could not spare any more
time. We then departed with the Ministry
agreeing to contact us to let us know how
things were progressing. I wondered how
they were planning to contact us with the
phones not working — by osmosis?
I couldn’t decide which was worse: to
be without phones or without electricity, as we had been the preceding week.
Fortunately I had been appearing in
the air-conditioned comfort of the High
Court when the electricity in our office,
and those of the Public Solicitors and
the Police Prosecutions Branch, who also
share our building, had been disconnected.
With no phones, air-conditioning or light it
was a case of tools down for the morning.
Even the backup generator was out. When
I returned at lunchtime, Ken Averre,
the avuncular Public Solicitor originally
from England, looked as though he had
just stepped out of a sauna. Through a
series of various threats and cajoling,
Ken had just managed to have the power
reconnected. And the reason for the temporary blackout was, of course, an unpaid
bill!
Amidst all this administrative chaos,
and with the High Court beginning to hear
trials again, I began my first murder trial.
The murder had taken place against the
backdrop of the Honiara Central Market.
On a Friday morning in September of
2001, vendors arrived early as usual to set
their goods on the stone tables, preparing
for the arrival of customers. One vendor
was Leslie Aukona. Another was Miriam
Kinta, who was laying out her cabbages
near where Leslie was setting up. Miriam
asked Leslie if she could borrow his pen.
He agreed, and after she had used his pen,
she returned it to him. Soon after, Miriam
saw Willie Waneburi approach Leslie. On
seeing Aukona, Waneburi pulled a yellow-handled knife out of his pants and
plunged it into Leslie’s stomach. Other
stallholders rushed to his aid. He was then
transported to hospital where he died as a
result of the knife wound. Willie had sped
away from the crime scene in a taxi coincidentally owned by the Chief Magistrate.
The taxi took him to the nearby area of
Ranadi where he asked a woman named
Nelly Tolifoa to provide him with shelter,
which she refused to do. Eventually Willie
fled back to his island of Malaita where
he was apprehended by RAMSI forces
two years after the fatal stabbing. These
are the basic facts of the case of Regina
v Waneburi, a tale of murder played out
before the Honiara High Court.
The trial was due to begin on a Monday
morning, and about a month beforehand
witness subpoenas had been sent to the
police to try to effect service on the 20 or
so witnesses that the Crown was to call
as part of its case. As I was soon to find
out, it is one thing to send the subpoenas
out, it is another to find the witnesses.
As you might expect, the apparent effort
expended on finding the witnesses did
not really intensify until the day before
the trial was due to start. I had arranged
for Samuel Balea, one of our two local
advocates, to be my junior counsel, to
give him experience in the running of a
criminal trial. I had arranged for the police
to bring the witnesses they had been able
to serve to the office of the DPP on the
Sunday afternoon before the trial. I was
due to meet them at 1.00 pm. By 3.30 pm
there was no sign of any police officers
or any witnesses. My level of frustration
was reaching the same level of intensity
as the rain that had begun to fall outside,
so I decided that I had had enough for the
day. With the trial due to begin at 9.30 am
before the Chief Justice Albert Yalmer,
and with not a witness to be seen, I was
not really looking forward to the dawn of
the following morning.
I arrived at the office early on Monday
morning to prepare. Slowly but surely
about four of our witnesses arrived by the
time we were due to go to court. Sam and
I threw our robes together and got a taxi
to drive us the two kilometres or so to the
High Court. There I rose to my feet and
told the Chief Justice something of the
difficulties that we had been encountering in our attempts to find witnesses. He
was extremely polite and accommodating
as the tales of woe that I was laying before
him were no doubt similar to those that he
had encountered on many previous occasions. I requested His Honour’s indulgence
to permit us an adjournment of 24 hours
to allow us time to locate sufficient witnesses to begin the trial. He granted my
request but allowed me to open the case
to him by outlining the circumstances of
the case of Regina v Waneburi.
By the time that we got back to the
DPP’s office there appeared to be a
breakthrough. As a result of my exhortations we had managed to discover the
whereabouts of three more witnesses,
and the two Royal Solomon Island Police
officers that were of central importance
to our case had appeared. I arranged for
one of them, a sergeant, to complete some
administrative tasks and search for further witnesses. I then briefed his superior
officer, an Inspector, on certain aspects of
the case. After they had left, I was told
that the sergeant had been suspended
because he had been convicted of criminal
offences and was not allowed to carry out
any tasks. It seemed to be a case of one
step forward and one step back. We then
recalled the Inspector from the Criminal
Investigation Branch and placed him in
charge of operational matters.
Slowly but surely more witnesses came
to the office during the day, and Sam and
I interviewed them in the conference
room. Nellie Tolifoa, the witness who
had spoken to Willie about 15 minutes
after the stabbing, had been brought in
earlier by police from Ranadi where she
lived. I began our interview by showing
her a photograph of her house that the
police had taken, where she said that
On the door outside
the Attorney-General’s
Department a sign warns
those who enter: “No Betel
Nut”. This refers to the
perennial habit of the vast
majority of the population
to engage in chewing betel
nut, a central aspect of
Solomon Islands culture.
Willie had approached her. She gave me a
quizzical look but I pressed on, assuming
some communication problems brought
about by my very basic pidgin and her
less-than-perfect English. Then, to my
amazement, she let loose with a torrent
of a story in which she was present at the
market and saw the stabbing firsthand. I
got Sam to translate what she was saying
and I was not mistaken. She told a tale
of being at the market that morning and
seeing Willie actually plunge the knife into
Leslie’s stomach, which was a completely
different story to the one in the statement
before me that only began with what she
had seen at a different location some fifteen minutes after the knifing.
Slowly we worked out what had happened, and a bizarre story began to
unfold. The woman sitting before me
was not in fact Nellie Tolifoa. She was
Nellie Rebita. As so often happens in the
Solomon Islands the police had simply
gone to Ranadi to get a woman whose
name was Nellie and who was a witness
for this murder case. Their enquiries had
led them to a Nellie, and without making
any further enquiries, they simply brought
her to our office, being satisfied that she
was the witness involved in the case. And
so by the strangest of circumstances I had
now been delivered up a witness who was
present when the stabbing took place and
actually saw it, a woman who lived in the
same area as our other Nellie, who happened to be at the market at the same
time and who had now been unearthed
as a result of sheer luck. Willie was not so
lucky, as Nellie Rebita’s evidence helped
convict him of murder for which he
received the mandatory sentence of life
imprisonment.
After the trial, I experienced my first
taste of life on circuit in the Solomons.
I was to travel to Gizo, the capital of
the Western Province, to prosecute an
attempted rape trial. In the Solomons the
Magistrates’ Court has jurisdiction to hear
these cases.
As my plane left Honiara behind and
headed towards the Russell Island group
we saw splendid views of turquoise water,
enormous palm-fringed lagoons, sandy
beaches and heavily forested mountains.
On the way, the plane landed on a grass
airstrip at the small village of Seghe before
moving further north west to the village of
Munda, on the island of New Georgia, for
refuelling. This process consisted of the
locals rolling three barrels of fuel across
to the plane and then hand pumping the
contents into the fuel tank. They stopped
every so often for the captain to turn on
the engine and check the fuel gauge to
ensure that we had enough fuel on board
to continue our journey.
For the final leg of our flight, our
Captain, an islander called Cornelius,
invited me to join him in the cockpit.
He had fled the Solomons during the
tensions and made his way to Australia
and ultimately to Victoria. There in the
towns of Sale and Shepparton, where he
was sponsored by the local Rotary Club,
he learnt how to fly. As we took off, the
children playing soccer, chickens, dogs
and various other animals on the runway
scattered as we became airborne. We rose
to our cruising altitude of only 800 feet,
sweeping through the occasional cloud,
and gazing on spectacular views of the
islands below. Leaving the New Georgia
mainland behind us we flew to the island
of Nusatupe, whose main purpose is to
provide an airstrip for the island of Gizo,
and the town that bears its name.
The town of Gizo has been the administrative hub of the Western Province
for over a century. It is tropical, and the
atmosphere is breezy and relaxed. Many
37
Simon Cooper holding conference on the Weather Coast.
Gizo residents walk barefoot through the
dusty streets, and those who wear “flip
flops” are followed by the ever-present
clip clop sound.
Walking across the dusty potholed
road towards the entrance of the Gizo
Hotel, you can see the large leaf haus that
plays host to hotel’s bar and restaurant.
Sitting in the open air dining area gives
you splendid views of the nearby islands,
particularly Kilimbangara, which still has
an active volcano. After checking into my
room I walked to the police station where
I was to meet Senior Sergeant Greenville
Tanito and collect my brief in the matter
of the Queen v Dominic Tanaka.
As I entered the police station, I was
instantly reminded that we prosecute in
the name of Her Majesty Queen Elizabeth
II. AIthough noticeably fading, the portraits of Her Majesty and Prince Philip
(circa 1953) lent a certain dignity to their
surroundings. In Senior Sergeant Tanito’s
office, I noticed a large portrait of the Duke
of Edinburgh, in full naval uniform, standing next to a fresh-faced young Prince
Charles, whose birthday is celebrated as a
public holiday in the Solomons.
Smartly dressed and wearing his
badges of office, Greenville Tanito jumped
up from his chair and greeted me with a
vigorous handshake. “Cooper,” he said. “I
am surprised to see you.” I was somewhat
taken aback since he had known of my
visit for at least a week. “I was expecting
38
a Solomon Islander,” he continued. After
overcoming his initial disappointment he
was soon to infuse the same in me. “I’m
sorry,” he began, and immediately I had
a feeling of impending doom. “The witnesses for our case were due to arrive on
the Solomon Airlines four days ago, but
they cancelled the flight.” And then as
if to reassure me that all was not lost he
continued, “But do not worry, they will be
here in two day’s time.” Considering that
the case was due to start the following day
the news did not really lift my spirits. As
if in a further attempt to console me he
said, “Don’t worry I have spoken to the
Magistrate and he is happy to adjourn the
case until then.”
The courthouse is situated down a dirt
track that runs behind the Magistrates’
Court office. Here sit both the Magistrates’
Court, on a daily basis, and the High
Court when it visits Gizo. The only piece
of majesty to do with the courtroom is
the omnipresence of Her Majesty Queen
Elizabeth II whose portrait appears (yet
again) directly behind the Bench and
above the Magistrate’s head. It is the only
adornment in an otherwise barren hut.
The Magistrate Mr Maina sat in a slightly
elevated position looking down at what is
the Bar bench. I use the term “bench” as
in the Solomon Islands’ courtrooms they
tend to be benches rather than the tables
that are used in Australia. The benches
are about a metre high and the top sits at
an angle of about 45 degrees, which tends
to make those who are appearing feel as
though they are back in school, taking
notes from the teacher.
Tanito entered the courtroom with a
person I hadn’t seen before trailing in his
wake. He proudly proclaimed that he had
“found an interpreter” at a church nearby.
With the afternoon creeping on we began
the task of calling witnesses on the part
of the prosecution. As Mr Maina took
his seat, we called our first witness, the
complainant. An elaborate process began,
which for an observer must have been a
little like watching a tennis match. I would
ask a question. The question would be
translated from English to pidgin for the
benefit of the witness. The witness would
give an answer in pidgin or Shortland
Island dialect, which was then translated back into English so that I could
understand the response. Meanwhile an
ever-increasing number of onlookers were
gathering the outside of the courtroom to
watch through the wire grates covering
the open air windows.
Despite the complicated process of
translation, the proceedings were conducted remarkable quickly. We started at
3.45 pm and by 5.30 pm, with the night
beginning to close in, the prosecution
case closed. His Worship indicated that he
would sit until 6.00 pm but that after that
it would be impossible to sit as there was
no provision in the courtroom for lighting.
The defendant was then called. By the
time we got to six o’clock somehow, in
the space of two and a quarter hours, we
had managed to call, and have interpreted
and cross-examined, four prosecution
witnesses and the defendant. His Worship
then adjourned the case for his decision,
and it was only by chance two months
later, whilst reading the Solomon Star,
I learned that Domenic Tanaka had been
found guilty.
This is, of course, only a small sample
of the way life works here from time to
time. This year the prosecutors have been
involved in many cases related to the tensions, which are being heard by the High
Court. The Court had three judges when I
arrived, and now has six. Harold Keke and
some of his cohorts are undergoing life
sentences after being convicted of killing
a Catholic priest, and I am about to start
prosecuting four members of the GLF
for allegedly executing six Melanesian
Brothers who made the mistake of going
down to the Weathercoast during the tensions. All in all there is plenty of work to
keep the lawyers here in court for many
years to come.
News and Views
Interview with
Professor Kathy Laster
Executive Director of the Victoria Law Foundation
F
OR an organisation with just seven
staff members working out of offices
in Hardware Lane, the Victoria Law
Foundation certainly makes an impact.
The philanthropic arm of the law, the
Foundation distributes an annual grants
budget of over half a million dollars,
funding projects aimed at improving
the administration of justice, enhancing
community understanding of the law
and promoting greater access to justice.
The Foundation also undertakes major
projects related to these goals, such as
the recently launched Rural Law Online,
a website providing poorly serviced
regional communities with accessible legal
information. Currently, the Foundation
is partnering with the National Trust to
redevelop the former Magistrates’ Court
as part of the historic legal precinct. Aside
from its grants and project commitments,
the VLF also publishes plain language
legal information, provides training for
grantees and the community legal sector
in areas such as project evaluation and
management. It is also the principal
coordinator for the 200 or so community
outreach events for Law Week. Professor
Kathy Laster has been the Foundation’s
Executive Director for nearly three years.
Ecumenical Migration Centre. More
recently I was involved in a community
development project for the City of Port
Phillip. Immediately before coming to
the Foundation I was an academic at
La Trobe University, and before that at
Melbourne University, ANU, and in New
York. What appealed to me at the VLF
was the opportunity to help people do
What were you doing before you
came to the Foundation?
I started out in law reform, and was
Executive Director of the Child Welfare
Practice and Legislation Review — we
produced the report which eventually
became the Children and Young Persons
Act 1989. After that I worked in what was
then the Department of Management and
Budget (now Treasury and Finance) on
implementation of the then new Equal
Opportunity Act and the occupational
health and safety legislation. I also had
a stint in practice, mainly in community
legal centres, and have worked in various
capacities in a number of welfare and
rights-based agencies including the
Brotherhood of St Laurence and the
Professor Kathy Laster
really worthwhile projects with concrete
outcomes, combining my research skills
with my more practical leanings.
Tell us about the Foundation
The law was ahead of its time in creating
the Foundation, which was established
nearly 40 years ago under its own Act.
The Chief Justice is, ex-officio, our
President, and our Board is composed of
senior representatives from all sections
of the profession, including a Bar Council
nominee. Our statutory objects are
very broad, and include improving the
administration of justice and the work of
the legal profession, facilitating research
to advance the law, providing support
for law libraries and promoting and
undertaking community legal education
(including in schools). The breadth of
our statutory objects allows us to be very
flexible; we respond to changing needs as
they arise.
Grant-making is our core work, and
many of our other activities stem from
or support our philanthropic work. We
have funded some exciting projects of
late; in June, we agreed to fund a position
of Education Liaison Officer at the
Magistrates’ Court to assist the “People’s
Court” to provide a better service to the
community, and, by popular demand, we
have allocated substantial funding to the
LIV to conduct a review of the scale of
costs in the Supreme Court.
Projects and programs that target
disadvantaged sectors of the community
are particularly important to the VLF. We
have funded the establishment of the Bar
scholarship for Indigenous students, which
will hopefully attract more Indigenous
students to the profession and support
them in going to the Bar. We also promote
a pro bono ethos within the profession
— for example through the Chief Justice’s
Medal for Excellence and Community
Service. Now in its second year, the
medal seems to have become the Rhodes
of the Supreme Court prizes, rewarding
exceptionally talented law students
who also demonstrate leadership and
commitment to community involvement.
As government has withdrawn substantially from service delivery, it has
also reduced funding agencies to a
narrow band of “core” business. This
has left organisations with little space
for reflection, little opportunity to think
laterally about their work and how it
might be more efficiently delivered. Our
grants encourage and support innovation
across the sector. In our holistic support
for project design and delivery, we have
somehow ended up as the public sector’s
KPMG.
39
How do the different elements of
the Foundation’s work relate to each
other?
Being a grant-maker is not just about
signing cheques. Agencies with strong
technical skills in their own area often
lack the necessary expertise to make their
grant fully effective; we assist by providing
in-kind support and by match-making. For
example, we recently funded research in
the Children’s Court on case-flow for care
and protection applications for children
aged 0–3. The Court lacked the very
specific research skills, project design and
evaluation experience to carry out such a
project, so we brought in an academic. We
also partnered in an Australian Research
Council linkages grant, meaning that
our $20,000 grant may well turn into a
$200,000 project.
Many of our grants applications are
for legal information projects. Through
our in-house publishing capacity we
have produced resources such as The
Grant-making is our
core work, and many
of our other activities
stem from or support our
philanthropic work. We
have funded some exciting
projects of late … Projects
and programs which target
disadvantaged sectors
of the community are
particularly important to
the VLF.
Juror’s Handbook, and we are currently
developing an updated version of the We
the Jury video, which is shown to all
attending for jury service. Our publishing
capacity allows us to partner with other
agencies, or take on publishing work
ourselves where grant seekers lack the
economy of scale, publishing expertise
or distribution networks necessary to get
information out to where it’s most needed.
For example, we worked with the National
Pro Bono Resource Centre to publish The
Australian Pro Bono Manual.
People often think money is the
solution, when in fact our and other
grant makers’ experience indicates that
they could benefit more from other kinds
40
of help. For example, through our
Legal Policy Internship Scheme, we
place gifted law students in around 15
public sector organisations, including
the Bar Council, the Office of the Public
Advocate, and the Victorian Law Reform
Commission, to undertake a variety of
important projects. The agencies involved
enjoy the benefit of the talented “person
power” of the students, while the next
generation of lawyers are imbued with
built-in public benefit thinking which
we hope will continue to inform them
when they eventually take up leadership
positions.
Our role as grantor allows us to
clearly identify areas where there are
gaps in service or understanding. We
take on projects ourselves as “applicant
of last resort” because some projects
are often too complex. For example,
we are currently working to develop
law@yourlibrary, a project based on the
NSW model, which will provide accessible
legal information in all public libraries
mediated by trained librarians.
How has the Foundation changed
with you as Executive Director?
People tell me that the Foundation used
to be perceived as a bit stuffy, more like
an old-fashioned type of charity. We are
now, I think, seen as more facilitative and
energetic. When organisations come to us
wanting financial support for their project,
we like to be imaginative about how we
can assist them — even if they do not
end up receiving a grant, we help in other
ways, and try never to simply say no.
We now have a stronger focus on adding
net value to grants, through, for example,
our internship scheme, the integration of
our grants and publishing programs, and
by fostering capacity building amongst
grantees, so they are better able to meet
the needs of their target groups. The
Board has been very encouraging and
supportive in what we have done with the
grants program, and we now work actively
with all parts of the legal sector to achieve
public benefit outcomes.
What do you like most about your
work?
I think my job is the best in the sector!
No day is the same, and I am constantly
involved in new and exciting projects. I
get to deal with all parts of the profession,
and I have met many fantastic people who
are passionate about access to justice and
equity, and who are also very thoughtful.
When I started, people told me that
when you are a grant-maker, there is no
such thing as a free lunch or a genuine
compliment, but I think people really do
appreciate not just the funding we provide,
but the support and encouragement we
offer for their work.
What are the greatest challenges
facing the Foundation?
When I began at the Foundation, it took
me some time to understand the culture
of the legal profession. Even though it is
a very diverse sector, it is nonetheless a
tribe with its own yearly cycle, system of
etiquette and pecking order. Lawyers by
training and inclination are also conservative and risk-averse, and being a centre
of innovation in such an environment
does pose some challenges. With lawyers,
things seem to be either a “scandal” or “a
tradition”, with nothing in between. We
have often found our activities — such
as holding a Portia’s Breakfast to mark
the beginning of the new legal year — are
initially faced with some skepticism. When
these events are a success, people expect
us to keep doing it. There is a temptation
to become complacent, but the Foundation
should lead through its openness to creativity, invention and new ideas.
Building reputation, in contrast to mere
profile, is a slow process. The work we do
is often invisible — as it should be. The
Foundation is inherently the bridesmaid,
and we do not try to overshadow the
magnificent work of our grant-recipients.
Sometimes, the dynamic nature of the
41
organisation can be an obstacle to due
recognition. While our responsiveness to
changing needs is a great strength, that
flexibility does not lend itself to an easy
“tagline”. I could name scores of examples
of the crucial contribution the Foundation
has made to the justice system: we funded
PILCH’s establishment and first five years
of operation, we have been vital in championing plain language legal publishing, we
supported early, ground-breaking research
into court delay and case-flow management
(when Ian Scott was Executive Director),
and we funded the establishment of many
specialist legal centres like Villamanta, the
Consumer Credit Legal Service, and the
Communications Law Centre. But memories are short, and you’re only as good as
your last grant.
On a quite different level, the introduction of the Legal Profession Act 2004
means that the Foundation is no longer a
named agency entitled to funding from the
Public Purpose Fund, and must compete
with any and everyone else for project
funding. With no right to infrastructure
support, there is potential concern about
preserving our independence. Funding
worthwhile projects on a basis of need
(rather than the preference of the gov-
42
ernment of the day) has always been a
hallmark of the Foundation’s achievements. It is ironic that the VLF is facing
uncertainty about its future at this point;
the Foundation plays such a unique and
important role in the justice system that
if we didn’t exist already, they’d have to
(re)create us!
Funding worthwhile
projects on a basis
of need (rather than
the preference of the
government of the day)
has always been a hallmark
of the Foundation’s
achievements.
What do you hope to achieve with
the Foundation?
Our three-year strategic and corporate
aim is “to become and be acknowledged
as a model public benefit organisation”.
Over the last two years, I think we have
achieved the first bit: we are now very
lean, and have accordingly been able to
increase our grants budget five-fold, and
we have developed important projects that
will leave a valuable legacy. But it is sometimes difficult for people working in the
hard-edge of the law to understand what
a philanthropic body does and why we
need it. Just by existing, the Foundation
encourages innovation, by offering the
possibility of support. The challenge now,
in a politically volatile climate, is to consolidate the goodwill we have generated
into an enduring support base.
What do you do when you’re not
working?
My children say that I don’t have a life,
but that’s only partly true. I sing with the
Legal Women’s Choir, and music and theatre are very important to me. My partner
and I also have a weekender where we
grow very organic but very unproductive
vegetables — just as well we keep our day
jobs.
Work/life balance is important, but
coming from an academic background
I think the boundaries for me are much
more blurred. I genuinely enjoy writing,
reading and thinking, so I don’t feel these
are “work”.
News and Views
Working Nets
Richard A. Lawson
I
shouldn’t encroach. Examining the
different uses and meanings of words
is something that Julian Burnside
QC does, if I may respectfully say so,
exceedingly well. So I trust that I shall be
forgiven for examining just one word. It is
“network”.
It probably comes from “net” and
“work” — two little words that decided to
team up. I can’t think of many other words
that have been happy to join “work”. Most
just sit beside it without actually joining.
Thus one has fast work, hard work, dirty
work and nice work (if you can get it).
However, a batsman needs good footwork
rather than good foot work.
So what is “network”? The results of
fishermen and fisherwomen repairing
their equipment? Whatever it is, it’s not
quite the same as “a network”. Putting
the “a” at the front makes for a change
because “a network” can bob up in all
sorts of places. Indeed, it would seem that
“a network” can be inanimate or animate.
Public transport can have a network.
Telstra does, apparently. Scientists look
down their microscopes and see little
ones or look through their telescopes and
see big ones. And this has been going on
for quite some time. Didn’t the ancient
Romans have a road network, even if
Julius Caesar never used an expression
that resembled “via netalabora”?
The trouble began with animate networks — in particular those that can be
ascribed to individuals or groups of people.
Here it should be clearly understood that
it is not necessarily a good thing to have a
network. One should hesitate before saying “I have a network” (as opposed to a
dream) because this could be regarded as
an admission against interest. Unless you
enjoy solitude, it is preferable to have a
circle of friends rather than a network of
them. A network of friends sounds odd.
People will think you have chosen the
wrong collective noun.
Accordingly, I have come to the tentative view that, for individuals and groups,
networks should be treated with caution,
Just Chatting: Richard A. Lawson
if not suspicion. Spies have networks.
Terrorists have networks. But surely not
barristers.
The trouble worsened, of course, when
someone decided to turn “network” from
a noun into a verb. Remember verbs? The
For individuals and
groups, networks should
be treated with caution, if
not suspicion. Spies have
networks. Terrorists have
networks. But surely not
barristers.
active ones were where something was
happening. I walk, you walk, he walks,
she walks. The passive ones were where,
again, something was happening but less
obviously so. I worry, you worry, he worries, she worries. Now, alas, we have to
put up with people networking. I network,
you network, he networks, she networks.
I don’t like it at all. For a start, what does
it mean? What exactly is one doing if one
is networking? It is a difficult question to
answer because “to network” is a verb
close to the traditional active–passive
dividing line.
I am told that a dictionary definition
is difficult to formulate. It is easier and
more helpful to give examples. A trained
observer can identify networking when
they see it: “Look, over there, those
people are networking”! Apparently it is
becoming an increasingly common feature of Bar Dinners. Here it can be seen
moving up the hierarchy like a wave.
Readers network juniors, juniors network
silks. But I understand that the reverse is
uncommon. As a rule, nobody networks
readers.
People who are actually in the throes of
networking, may not even be aware of it.
I may even have unconsciously indulged
myself at this year’s Dinner when, at the
time, all I thought I was doing was chatting to the others on the table. It remains
an open question, incidentally, whether, if
one is not oneself networking, one can “be
networked” or one can “get networked”.
For all I know, I may have been or gotten
networked at this year’s Dinner. But I flatter myself I suspect that very few, if any,
colleagues would want to network me. Yet
people who don’t knowingly network may
be the most susceptible to being or getting
networked themselves.
There is a further question which
should be explored but the relevant research is a bit thin. Once you
have been networking for a while, do
you have a network or are you in one?
I think that it would be nicer to have
one than to be in one but who can say?
Things could get very sticky if one were
in a network and didn’t like it. It might
be very hard to get out. You could even
end up lost in a network (as opposed to a
masquerade).
Networks are probably not very noble
things, but I fear that they are here to
stay.
Do you want to be an advocate or a
networker? If only they were mutually
exclusive.
43
News and Views
The Queen v.
Edward “Ned”
Kelly
A theatrical representation of the
trial of Ned Kelly
Kelly stood trial on 28 and 29 October 1880 for
the murder of Constable Thomas Lonigan at
Stringybark Creek on 26 October 1878.
O
NE hundred-and-twenty years
after his trial, Thomas Wright and
Nicholas Harrington wrote a theatrical representation. With minor revisions
by Judge Michael Strong, this was performed as a reading at the 18th Biennial
Conference of District and County Court
Judges of Australia held in Melbourne’s
magnificent County Court building in
June 2005.
Readers may recall the first performance of this work in 2000 where the
Bernard Caleo as Ned Kelly, Geoff Smith as You
re-enactment in the Supreme Court was
followed by the re-trial on which, it should
be noted, the current Chief Judge of the
County Court appeared to defend the
prisoner. (Bar News Winter 2000).
In the 2005 reading, the characters
Nick Harrington, director.
Thracy Vinga as James Gloster
and Nick Harrington as Dr
Samual Reynolds.
Paul Elliott QC as the prosecutor
Smyth.
Judge Fran Hogan addresses
the judges.
Julian Ireland as Edward
Living.
Colin Duckworth as Sir Redmond Barry.
44
Kelly and the Judge.
Mark Robins as PC McIntyre.
The Essoign
Wine Report
By Andrew N.
Bristow
M. CHAPOUTIER
AUSTRALIA 2002 SHIRAZ
M
ung Bindon and Judge Michael Strong as Old Bindon.
were in costume, but were mainly static.
The challenges therefore were to engage
the (mostly) judicial audience; to do so
without the benefit of action, or variable
lighting; to do so in the broad daylight and
open surrounds of the majestic Waldron
Hall — and all of this early on a Sunday
morning following the Conference’s “Big
Night Out” at the Essoign Club the night
before.
The cast who faced this task under the
direction of Nick Harrington were Bernard
Caleo as Ned Kelly, Judge Strong as the
narrator — Old Bindon — the barrister
who represented the prisoner, looking
back on the ignominy of his inadequate
representation, Geoff Smith as Young
Bindon at the time of the trial, Paul Elliott
QC reprising his role as prosecuting counsel Smyth, Colin Duckworth as Justice
Redmond Barry, and Mark Robins, Thracy
Vinga, Julian Ireland and Nick Harrington
as various police and civilian witnesses.
And rise to these challenges they did!
With few rehearsals, the performance
went off without a hitch and the powerful
script, adapted faithfully by the writers
from newspaper accounts of the period,
carried the audience along with it. The
extraordinary exchange between Kelly
and Redmond Barry before the sentence
of death was passed was truly moving.
The audience not only turned up for the
performance, at 10.15 am, but remained
awake — perhaps due in no small part to
an excellent warm-up session from 9.30
The Court scene.
am from Professor Arie Freiberg, Dean
of the Faculty of Law, Monash University
and Chair of the Victorian Sentencing
Advisory Council. He made the topic of
sentencing a stand-up comic sensation.
No transcript is available.
This performance of Tom Wright and
Nick Harrington’s work was an excellent
one, warmly received and highly praised
by the audience. Thanks go to all those
who helped make the production possible, including the County Court staff
who helped behind the scenes. The
Irish connection was maintained with
an introduction by Judge Fran Hogan of
our County Court and with Judge Kevin
O’Connor of the New South Wales District
Court, who happened to bring his violin
to the Conference and, with overnight
notice, played an Irish air as a most fitting
overture.
Judge Meryl Sexton
. Chapoutier Australia is the
first joint venture abroad for
the renowned Rhone Valley firm.
The 55 hectare estate at Mount
Benson is part of the Limestone
Coast region and is cultivated with
organic methods.
The grapes for this wine
are destalked and are vinified in opened concrete vats.
Fermentation and maturation lasts
between three weeks and a month.
After pressing, the wine is put
into French barriques for 10–18
months’ ageing. The percentage
of new wood does not exceed 20
per cent in order to encourage the
fruit aromas and characteristics of
the wine to develop fully.
The wine has a bouquet of
blackcurrant and blueberries and
some peppery smoky overtones.
The wine colour is an intense
red colour.
The wine has a very round structure, slightly woody and very soft.
It has discrete round tannins with
fruit throughout, with
an aftertaste of limestone from the soil.
This wine is ready to
drink now, but should
improve with two to
three years’ cellaring. It is available
from the Essoign
Club at $31.00 a
bottle ($26.35 takeaway).
I would rate
this wine as a
junior
planning
Barrister, expensive but pleasant
and able to do the
job competently.
45
News and Views
A New Court for
Victoria
On Friday 9 September 2005 in the presence of
about 300 distinguished persons, judges and guests,
the Attorney-General of Victoria, the Honourable
Rob Hulls, and the Minister for Children, Sherryl
Garbutt, launched the first Children’s Koori Court
in Melbourne. Created under the Children and
Young Persons (Koori Court) Act 2004 — the first
legislation of its type in Australia — its principal
mission is to help reduce the overrepresentation of
indigenous children in the criminal justice system.
This new division of the Children’s Court will have
its first sitting on 6 October 2006.
T
HE Children’s Koori Court is an
initiative following the success
of the four adult Koori Courts at
Shepparton, Broadmeadows, Warrnambool
and Mildura. The Koori court is a pilot
program and constitutes the implementation of one of the major recommendations
from the State Government’s Aboriginal
Justice Agreement with Victoria’s Koori
communities, designed to tackle the
alarming rate of indigenous over-representation in the criminal justice system.
The launch began with a traditional
smoking ceremony; the gutteral sounds
of a didgeridoo; three traditional dances
performed by young persons from the
Code School; and warm welcomes from
representatives of the Koori community
Peter Rotumah and Aunty Joy Wandin
Murphy.
In his remarks launching the Court, the
Attorney-General said:
}
Every story has a beginning, a
formative stage that shapes it and lays
the foundations for the road ahead. Most
people understand this and increasingly
we emphasise the importance of the early
years of life, as we talk about nurturing
and reading more to the nation’s children;
46
as we lament precious time lost to
detention for those children the nation
does not claim; as we imagine the despair
and bewilderment of those on whose
theft and grief this conflicted nation was
built. Despite this, the significance of
beginnings seems to elude some in high
office, those who would start our story
in the middle, a tale of ANZAC and the
quarter-acre block. In doing so, in failing
to acknowledge or take responsibility for
the past, these people and their wilful
blindness condemn our shared account to
a tarnished and unresolved future.
In Victoria things are different. In
Victoria, we know that until we make
amends for the destruction and denial
in this nation’s early chapters — until
we tackle it, resolve it, redirect it — the
stain will remain on the episodes to come.
Reconciliation is as much about our future
as it is about the past.
There is a continuing challenge before
us, and the jurisdiction that we launch
today represents one way that we can
respond to it. This court embodies our
shared recognition that, just as genuine
reconciliation depends on acknowledging
and rectifying the early chapters of
our collective story, so it depends on
cementing a positive future for what, in
my view, are this nation’s most vulnerable
youth.
Few people would deny the
susceptibility of indigenous young people.
Tragically, in this state alone, Koori kids
are nearly 10 times as likely to be the
subject of child protection orders or in
out-of-home care and, just as tragically,
indigenous youth are over 16 times more
likely to be in juvenile detention than nonindigenous Victorians.
These figures are even more appalling
than the equivalent for Koori adults and,
Police Commissioner Christine Nixon and the Minister for Children, The Hon.
Sherryl Garbutt.
The Attorney-General presents an art
prize at the launch.
Dancers from the CODE School at the
opening ceremony of the launch.
given that approximately 57 per cent of
Victoria’s burgeoning Koori population
is under the age of 25, the urgency of
this predicament is even more profound.
We cannot forget the Royal Commission
into Aboriginal Deaths in Custody’s
unambiguous warning that the tragic
reason for “the disproportionate number
of deaths was not the rate at which
Aboriginals were dying in custody, but
the rate at which they were being taken
into custody”. We must, therefore,
keep striving to reduce this rate — to
divert indigenous Victorians from the
unforgiving cycle of the criminal justice
system.
It is, of course, my hope that this
inaugural Children’s Koori Court will
follow in the larger footsteps of its
adult equivalent. Now operating in four
locations around the state, the adult Koori
Court jurisdiction is, quite frankly, the
“resounding success” for which we had all
hoped, its achievements reflected in the
removal of its sunset clause by Parliament
earlier this year. Dr Mark Harris of La
Trobe University conducted a two-year
evaluation of the program and found that
it has significantly reduced recidivism, in
turn reducing over-representation in the
prison system.
The evaluation also indicated:
• reduced breach rates for corrections
orders and failures to appear;
• increased Koori community participation in the administration of law;
• a less alienating forum for defendants;
• a mechanism for taking cultural
considerations
into
account
in
sentencing;
• integration of service providers involved
in tailoring corrections orders;
• reinforcement of the status and
authority of Elders and Respected
Persons, thereby strengthening the
Koori community, and;
• effective broadcasting of the Koori
Court vision, to the extent that they
have received support from some
sectors that had previously been
sceptical.
Participants,
including
police,
indicate that, rather than considering
the Koori Court to be a less serious
option, defendants appear to be far
more confronted, particularly given
the presence of Aboriginal Elders and
Respected Persons, whose importance
cannot be underestimated. Well, I want
to see the same steady decline in Koori
young people sitting in prisons and police
cells, and instead see them completing
their CBOs, reconnecting with their
families and culture and, one by one,
shaking off the vicious cycle of crime and
alienation.
The Children’s division will, of course,
also be a two-year pilot. However, it is
my hope that its philosophy of support,
its informal atmosphere and its emphasis
on strong family ties will answer the
call from the Royal Commission into
Aboriginal Deaths in Custody for greater
reinforcement of the family and, with
great humility, go a small way to mending
the fractures of the past.
Unlike the Koori Court story, however,
the national story is at a crossroads. We
must seize every chance that comes our
way to wrest it from its initial violence
and tragedy and propel it into healing
and, ultimately, happier waters. We are
the authors of this tale — we dictate
47
the plot, and decide what characters
and qualities endure. We can make its
remainder inspiring, and can mirror its
promise in the individual stories of all
those who come before jurisdictions such
as this we launch today. As a nation, as a
wider community, we owe an enormous
apology to the indigenous children of
yesterday — to those who have grown up
swimming in grief and who, as adults, still
carry their quiet despair — a legacy that
drips down the generations. I can think of
no better development in our collective
account, then, than to show compassion
and respect to the indigenous children
of tomorrow — to give them the tools to
write their own story; to steer them out of
contact with criminal justice system and,
instead, to send them home.
To be able to see and feel and hear that
strength of purpose and commitment is
nothing less than inspirational to those
of us from the non indigenous community
lucky enough to have been involved in this
project.
We started this work in June of 2004
with the establishment of a state-wide
reference group made up of a crosssection of community and government
agencies including Koori organisations,
Rajac reps, VALS and VACCA, Vic police,
the indigenous issues unit and Juvenile
Justice and VLA and the court. This
group was responsible for developing an
appropriate legislative and operational
model.
~
In responding, the President of the
Children’s Court, Judge Jennifer Coate,
said:
}
It is a moment of such mixed
emotions today. I feel personally proud to
be able to lead the court at such a moment
in the 99-year history of the Children’s
Court of Victoria.
As a Court we feel optimistic and
enthusiastic about what the Koori Elders
and Respected Persons will be able to
offer us and the young Koori people in
this new division of the Court to whom
we must apply the law applicable in this
State. To have their assistance in engaging
young Koori people and their families and
to have the benefit of their wisdom and
words to us and the young people and
their families is an invaluable addition to
our work.
But that pride I feel today is tempered
with sadness and sorrow at the history of
the justice system and the law generally
as it has impacted on the lives of many
Koori people in this State, as it has been
a sorry one indeed. It has been a history
of sadness, despair, bewilderment, trauma
and tragedy.
I have been and continue to be uplifted
and inspired by the capacity of the many
and varied Koori people involved in this
project (despite that sorry history) to
agree to walk together with us into court
and to make new history — one that
contains hope and healing. Personally,
I feel compelled to observe and remark
upon the strength and courage and
resilience of the Koori people who
have supported and encouraged the
development of this court and the trust
they have implicitly placed in us to work
with them in that development.
48
President of the Children’s Court of
Victoria, Judge Jennifer Coate.
Whilst our Koori Children’s Court model
has drawn heavily on the experience and
learning of the adult Koori Court model,
from the outset, it has been agreed that a
Children’s Court model must be adapted to
children and young people and therefore
contains some significant differences.
It was important for all of us to
emphasise that part of the purpose of the
Koori Children’s Court was to achieve more
culturally meaningful sentences for young
Koori people, to endeavour to engage
them and thereby assist them to choose a
life path away from further offending.
It was also important that young Koori
people were not persuaded to consent
to the jurisdiction of the Koori Court by
having to plead guilty, so it was decided
that the Court will also hear matters where
a young person as been found guilty.
We also thought it important not to
exclude those matters where family
violence formed part of the offending as
we noted that those young persons may
well be most in need of the support and
guidance available to them through the
Koori Children’s Court.
In preparation for our first sitting on 6
October, in the last week of August most of
the court staff and all of magistrates who
will sit in this first Children’s Koori Court
Division participated in a training program
with the Elders and Respected Persons
together with some lawyers, police
prosecutors, and juvenile justice workers
and some of our court clinicians, including
our director Dr Pat Brown.
It was a week full of laughter, sadness,
wisdom, discussion, watching, learning,
listening and thinking and powerful words
and thoughts. We all learnt a lot about a
lot of things and I again wish to thank in
particular those Aboriginal Elders and
Respected Persons who participated
in that week. Without them, the entire
experience would have been stripped of its
richness and quality.
Just before I finish, I want to single out
one person who amongst many other tasks
was responsible for putting that training
together and ensuring that everyone was
looked after, but most importantly our
Elders and Respected Persons. She has
also put in a huge amount of personal
effort and time in travelling around to many
metropolitan Aboriginal communities
explaining to and encouraging elders to
participate in the Koori Courts generally.
Anyone who saw Rosie Smith during
our training week participating in our
mock Courts would now be anticipating
that she might be about to get a Logie
for her performance as the errant niece
of her Uncle Daniel. That is not my gift
to give Rosie, although you deserve one,
but equally you deserve the recognition
of this Certificate of Appreciation for
your excellent Service to the Elders and
Respected Persons of the Koori Children’s
Court.
I know this new Division of our Court
will be a great success and thank you to all
of you for being here today to give it the
spirit of cooperation and hope our young
Koori people coming to it both need and
deserve.
~
The launch concluded with a musical
interlude performed by Mr Kutcha
Edwards. After the last notes had died
down, the real buzz was felt, the palpable
sensation that something new, hopeful and
worthwhile had just happened.
And it won’t do barristers any harm,
either.
News and Views
2005: the Threat
of Recession –
1990s Unlearned?
The illusion of Bank finance and the
use of residential equity
Tony Radford
O
N the eve of a new tax year I write
with an interest in public affairs.
I write prompted by the
apparent lack of public consciousness
of and/or the apparent lack of public
reaction to the recently published figures
in the metropolitan dailies in Australia
(March–May 2005 inclusive) of the levels
of private debt by Australian citizens
to Australian banks over the years
2000–2005, particularly since mid-2002.
(Most of the investment was by onshore
or permanent residents.) These levels do
contrast with the final phase cooling of
the Australian residential realty market in
the second quarter of 2005, following the
March 2005 increase of 0.25 per cent in
bank rates as authorised by the Reserve
Bank. Earlier similar rises occurred in
May and June 2002 and November and
December 2003.
The absence of a consciousness or a
reaction to the size of the debt is mirrored
in the failure by Australian Federal
Government
and
semi-government
regulatory authorities to bring in legally
enforceable effective mechanisms to
restrain unmitigated excessive borrowing
by persons and companies (and by banks
from overseas sources). Governments
have looked at mirrors whilst twiddling
their fingers, unable or unwilling to
interfere further in the area of private
consumer decisions (including those by
companies) on matters of free enterprise.
Commencing in 2000–2001, the more
prominent features of the Australian
economy for the last five years (at least
to the end of March 2005) have included:
the general stability of the economy; the
Tony Radford
increase in the strength of the Australian
dollar; heavy investment in residential
realty markets in capital city metropolitan
areas and surfcoast areas relatively close
by; strong commercial investment by
developers in greenacres, bayside and infill areas; considerable consumer spending
on whitegoods, furniture, personal apparel,
holidays, travel and motor vehicles; lastly,
the low interest rates themselves and the
absence of any real inflation.
Considerable realty investment has
occurred, with substantial numbers
of home owners using equity to seek
investment in not only second but third
properties, including properties in outer
urban and country areas. Additional
features of the residential realty market
include use of trumped-up hype for realty
prices; the use of hype and the incidence
in 2000–2001 of the Federal Government
first home buyer’s $7,000 home deposit
scheme (and its variations) and in Victoria
the Victorian Government’s $5000 grant;
the hype and this scheme combined with
aggressive and competitive advertising by
banks and other financial lenders. The
highlight of this advertising was perhaps
a sustained campaign by the CBA on GTV
9 in the 2002–2003 summer Test Cricket
season in Australia, using the words
“equity, ma … a … ate”), one ad featuring
a top order batsman.
Each Australian capital city together
with adjoining residential areas has its
own residential market. This includes the
more populous Sydney area, with limited
access to harbour views and chronic under
supply of reasonably priced residential
properties, a feature almost replicated
— but in a slightly cheaper environment
nonetheless — in Melbourne, with six or
seven precociously priced inner suburbs.
At least within the Melbourne
metropolitan area there are additional
pressures exerted by the enforcement
by the Victorian Government and local
Councils (the latter at times reluctantly)
of the new planning policies (2030,
Greenwedge & ors).
The driving of demand of both old
properties and new, especially within
the “inner/middle-ring” suburbs to prices
barely tempered by the rate rise referred
to earlier, is one effect of these policies.
Ultimately, and sometimes with rapidity,
these prices influence others further out
from the CAD.
The net effect of the rise in realty(debtfuelled) demand has resulted in entry
levels for new (first) home buyers to
be way in excess of market predictions.
Those levels did not deter 175,000 persons
entering the market aided by the bonus, at
least to end March 2005.
These features and others have seen
Australian financial lending institutions
lending to borrowers here, and themselves
borrowing offshore, at levels unparalleled,
surpassing even the mid-1980s investment
surges. (The latter was canvassed by this
writer in the article “Investors’ thoughts
from abroad — lending in the Australian
Economy — 1980–1991” in the VBN No.
83 Summer 1992). The borrowings of the
“LandBoomers” of the late nineteenth
century appear quite tame compared to
the twentieth century phenomena.
Much of the current lending for
residential real estate has been, at least
49
since 2002, at prices not capable of
being sustained or maintained in the
intermediate or long term.
Negative gearing — a more major
factor — was alive and well in place by the
early 1990s.
The Age in late June 2005 contained a
report of false claims for grants totalling
$4.1 million and of this money to be the
subject of recovery steps by the Victorian
Revenue Office (which administers the
schemes within the State).
Both negative gearing and the home
grants scheme may need to be reviewed
by all governments together with housing
policies if there is a broad acceptance of
the need to find better ways to increase
the stock available for first home buyers
at much lower levels of entry.
In the climate of the features of the
economy referred to above, for the past
five years particularly at the peak of
residential prices, it is relevant to pose
a number of questions. One wonders
precisely what questions — reflecting due
care (and/or diligence) — were asked by
institutional and other lenders and their
advisers legal and otherwise and on the
other hand by would-be-borrowers and
their own advisers legal and otherwise
as to the nature and quality of the
proposed investment — all this before
documentation. Some basic questions can
be raised.
1. Whether the lender seeks to lend in the
transaction at all?
2. Whether the lender should prudently
seek to lend as much as they have
sought to?
3. Whether the lender should not seek
more than one property as security?
4. Whether or not the lender should take
additional securities as well as real
securities?
5. Whether or not the prospective lender
is in possession of a written valuation,
especially one based on a list of parcels
of realty of comparable qualities?
6. Whether it is prudent to lend beyond
75 per cent or at least 80 per cent of
the “alleged” (market) value of the
proposed realty?
7. Whether or not the prospective
borrowers should not be wholly
responsible at least for the first 10–20
per cent of the purchase price by way
of deposit?
8. Whether the borrowers have a proven
capacity:
(a) to save for the deposit or pay for it
from established reserves; and
(b) to fund any new regular payment
commitments under any proposed
50
mortgage(s) from their own
financial resources?
9. Did the prospective borrower sight
a written valuation of his own before
bidding?
At least prior to the 1990s it was
regarded as standard banking practice in
Australia to practice fundamentals such
as ensuring the amount borrowed was
not disproportional to the intrinsic value
of the realty and to ensure that the would
be borrowers had at least a 10 per cent
ownership in a property by way of paying
for the deposit themselves from their
own resources. A more basic theme/
tenet was to ensure that the amount
loaned was equalled by the amount of
actual cash held by the bank at the time
of the loan.
One of the features of the borrowing
splurge of the past five years is a sudden
focus by banks on an apparent “source”
of finance which had been apparently
Much of the current
lending on residential real
estate, has been at least
since 2002, at prices not
capable of being sustained
or maintained in the
intermediate or long term.
overlooked by potential consumers.
Others had never even thought of a
second investment.
The CBA advertisement of “equity, ma
... a ... ate” was an interesting ad focusing
on home owners — the latter pictured in
dwellings of various types and sizes (albeit
with emphasis on the male owners). The
pitch was at “middle” Australia. These
advertisements were seen as novel,
merely conversational, vaguely amusing
if not benign. They were perceptively
as harmless as a leisurely haircut, or
a workout with a Pilates expert or a
personal trainer.
Another feature was of “spending the
kids inheritance” pitched at the vendors’
market. The legitimacy of this can be
questioned.
Free enterprise reigns — but what
happened to the “nest egg” and the de
facto superannuation in the solid family
home? Ever heard of “overcapitalization”?
Ever heard of overspending?
There are many facets to society in
Australia. Aspects of consumerism include
the public in buying items including realty,
their mood to do so shaped in part by their
own perceptions of need, the time spent
in searching for the “right buy”, but also
by what they think they ought to do in
terms of what their neighbours or peers
would think if they did not buy realty or
personalty and/or have just a hint of large
expenditure every now and then. Further,
bragging can always be tolerated and
tales can go on in ever-increasing circles.
Estate agents’ firms rise and fall in such
a climate, at least in Melbourne where
transfers of estate agents from one firm to
another seem to be more prevalent in the
past five years (and to rival that of the exit
of has-beens from AFL clubs to others and
back). At least one of the more prominent
(Melbourne) estate agents on a billboard
erected mid-June 2005 proclaimed: “... We
are responsible for the boom.”!
The Federal Government has taken
no fresh steps to restrain excessive
borrowings by the Australian public
since the mid 1990s. It has itself largely
concentrated upon attempting to
encourage confidence and buoyancy in
the economy with tax handouts and other
reforms favouring the taxpayer, FTAs and
the like.
It has equated spending growth at large
with success and happiness for all.
Spending as such has taken place. But
such spending has been without regard to
the consequences. This is the policy and
result of the application of strict laissezfaire.
The Commonwealth Government has
sought at times to stress its own fiscal
responsibility. It has further sought to
lampoon the Keating threat of the banana
republic of the late 1980s and early 1990s
and to remind the public of the (peak)
17 per cent interest rates which then
occurred.
Let it be accepted that the Reserve
Bank of Australia operates under its own
act and charter.
It is submitted that at least since
2002 there have been far too many
public statements emanating from the
Parliamentary side of Government in
Canberra — through either or both the
office of the Prime Minister or that of the
Treasurer — not of course within direct
hearing or sight of the Reserve Bank —
but noting that it was not the right time to
raise interest rates. This theme continued
throughout the 2004 election period. It
has continued unabated.
Such statements portrayed great
naivety about fairly significant parts of
the economy (such as the rural sector
and the effect there of the long drought in
particular) as well as ignoring the dangers
of an over-spending population alive in
rampant consumerism. (No interest for
twelve months and like phrases have been
common in the retail sales sector.)
One might, however, have expected
that good corporate governance applied
to both Government and private industry
and business, supposedly all working
together for the benefit and for the welfare
of all people, not merely the shareholders
of the banks.
One of the features of the Australian
political and social landscape of the
twentieth century and the twenty-first
century has been that members of
the public are largely unaware of the
extraordinary levels of private debt of
farms throughout Australia.
This feature, in a sense, was reflected
in late 2004, when the Federal Treasurer
read the full budget speech in 30 minutes.
In the speech there was not one significant
reference to drought crisis nor any
suggestion of the warranting of a scheme
for a subsidy to needy farmers.
A scheme was announced in May
2005 — six months later, after a much
publicised trip to the back of Wentworth
by the Prime Minister. It was better late
than never.
However, still nothing has been said by
any senior (or other) Minister about the
amount of private debt — in any sector.
This is a “head in the sand” attitude
by the Federal Government and other
authorities.
The most recently published sets of
figures showing the current levels of
private debt, and further figures showing
the quarterly levels of the Balance of
Trade and the Balance of Payments, bring
sharply into focus the danger of repeats
of the errors of the 1990s recession. The
mountain of individual farm debt is now
to be ranged alongside the individual
household borrowings in the non-rural
sector. It is noted also that current bank
card credit levels are an average of $2,500,
also.
Overseas borrowings by banks are of
tsunami proportions.
Significantly, the 0.25 per cent rate
rise of March 2005 led to a “cooling off”
of realty prices, a cooling off that was long
overdue. It has been the only step taken
by any Federal authority.
There may be no necessary connection
in general terms between this cooling off
and a fluctuation of prices on the ASE in
late May 2005 of Multiplex Constructions
and Mirvac and later relevant press
articles about each company and also by
one of them.
Nonetheless, there are timely warnings
to the industry at large and ought to be
to consumers in general, particularly
in the residential realty markets, about
the dangers of excessive investment
and excessive prices in domestic realty.
Comparisons suggest that house prices
reached in mid-2004 are way in excess
of comparable prices overseas. Reduced
levels of Australian retail purchases
reported in August 2005 appear to be of
diverse origin, including the prolongation
of the drought reflected in far higher
temperatures in Autumn and a tightening
of general consumer spending initiated by
customers themselves.
The echoes of the excess borrowing
of the late 1980s and 1990s, evidenced in
the Tri-Continental and Estate Mortgage
fiascos, are one matter.
The author’s concern is that like
the availability of water, it takes time
for people to realise that excessive use
of one resource asset will diminish its
availability and also — contrarywise
— will considerably raise its price.
It is suggested therefore that the
lending institutions, their shareholders,
advisers commercial and legal of lending
institutions, the borrowers in the
Australian financial markets and their
advisers legal and commercial, take a
good long hard look at the size of personal
debt in the Australian economy.
Further, Government and semigovernment authorities should be rigidly
independent and independent of each
other in giving far better protection for
the public than has been accorded by the
regulatory regime since the mid 1990s.
This is because the borrowings that have
taken place are exorbitant and grossly
excessive.
It has been extraordinary that post
2000, there has been only five rate rises,
each of only 0.25 per cent. These occurred
in the face of the continual sharp rises in
the residential house prices. These rate
rises were too late and too little.
Australians have had a good time in
the past five years running rampant in the
chocolate factory.
It is time now that they lose weight
and dine more lightly, ignoring the quiet
entreaties of the real estate auctioneers.
Canberra should also take note.
A copy of this article, written in late June
2005, was sent to the Governor of the RBA.
Receipt of it by him was acknowledged by
the Secretary of the RBA (as requested by the
Governor), but without comment.
The article now published has been
updated to take account of events to the
date it was submitted to the editors in late
August 2005.
John Larkins
furniture
individually crafted
Desks, tables (conference, dining,
coffee, side and hall).
Folder stands for briefs and other items
in timber for chambers and home.
Workshop:
2 Alfred Street,
North Fitzroy 3068
Phone/Fax: 9486 4341
Email: [email protected]
51
News and Views/A Bit About Words
Mate
T
HE serious business of parliament
descended into solemn farce on
18 August 2005 when security staff
received an important memo. They were
forbidden, it said, to address parliamentarians as “mate”. This tiny, ridiculous
incursion into the domain of manners and
language sparked a lively debate.
The edict was withdrawn within 24
hours. In the meantime, parliamentarians competed with each other to display their hearty egalitarianism. This
was especially noticeable among those
of ostensible proletarian disposition, but
conservatives were equally anxious to
avoid the unhealthy taint of aristocratic
pretensions in public. Mr Howard is
famously given to calling people “mate”
when moving among the public.
Hansard records the following:
Unparliamentary Language
Mr PRICE (3.18 pm) — Mr Speaker, can
you confirm that attendants and security
personnel have been banned from using the
word “mate”? Could you advise the House
what is unparliamentary or un-Australian
about the word “mate”?
The SPEAKER — I thank the Chief Opposition Whip. I am not aware of the point that
he has raised, but I will make some inquiries
and report back as appropriate.
Mr ANDREN (3.18 pm) — Mr Speaker,
mate, do you intend to make a statement
about the correctness of the eviction of the
member for New England from the chamber yesterday and why he was asked to
withdraw the word “bribe” …
In the Senate the mood was similar:
Senator SIEWERT (Western Australia)
(1.27 pm) — If you were to ask someone to
guess which country you were talking about
when you described a place where the right
to silence was being removed and workers
could be thrown in jail for failing to incriminate themselves or dob in a mate, …?
Mate is a very old word, but Senator
Siewert captured its Australian connotations perfectly. Mate is first recorded in
52
the 14th century. Johnson equates it with
the Saxon maca and the Dutch maet — a
match, an equal; and the Icelandic mate
— a friend. The OED2 says it comes from
the old Teutonic word gamaton, meaning messmate. A messmate is one who
shares a meal: it is an exact parallel of
companion: a person who breaks bread
with another (Latin com- with + pan-is
bread).
Mate has a variety of meanings.
Johnson, with his customary succinctness, offers: A husband or wife; a companion, male or female; the male or female of
an animal; one that sails in the same ship;
one that eats at the same table.
The restrained prose of the OED2 gives
the following senses:
A habitual companion, an associate, fellow,
comrade; a fellow-worker or partner. Now
only colloquial. See also messmate, playmate, schoolmate.
A form of address by sailors, labourers, etc.
One of a pair or one of a wedded pair. A fitting or worthy partner in marriage.
Of things: The fellow of a pair; a counterpart or parallel. Thus: “Every Nerve hath its
mate or Companion”. (1668 Culpepper &
Cole Bartholomews Anatomical Manual.)
A point on tramway lines which is cast
solid and pairs or “mates” with the movable tongue or switch on the other rail; an
“open” or “fixed” point. orig. U.S.
Nautical uses. a. An officer (now only on a
merchant vessel) who sees to the execution
of the commands of the master or commander, or of his immediate superior, and in
the absence of the master takes command
of the ship. In the Royal Navy the title has
been changed to Sub-lieutenant.
It will be immediately obvious to
Australian readers that these definitions,
although not inaccurate, are not complete:
they do not capture what mate really
means in Australian vernacular English.
The Australian National Dictionary
(Oxford, 1988) does a bit better:
An equal partner in an enterprise; an
acquaintance, a person engaged in the same
activity; one with whom the bonds of close
friendship are acknowledged.
The Macquarie (3rd ed, 1997) offers,
along with the usual standard meanings
“… a comrade, friend, intimate; a form
of address ‘how are you going, mate’; and
(formerly) one of two men who helped
each other without formal agreement in
usually hard tasks, as fencing, land clearing, goldmining etc …”
By contrast, in 1859 in Life in Victoria
W. Kelly wrote that mate was “the fashionable colonial term”. One hundred years
later, Sidney J. Baker wrote in The Drum
that mate and mateship are “… standard
English in all the senses used in Aust.,
although they are probably used more
often in Aust. than elsewhere. The main
Aust. contribution has been in sentimentalising the terms.”
Especially during times of war,
Australians have valued mateship above
most other values. In the trenches of
France, at Gallipoli and Tobruk and
Bougaineville, Australians knew what a
mate was, and the word was valued and
the sentiment was genuine.
John O’Grady (who, under the pseudonym Nino Culotta, wrote They’re a Weird
Mob) discussed mate in “Aussie English”
(1965) and caught both its emotional
force and its odd ambivalence:
Your best friend. When your mate is in trouble, you go to his assistance, no matter what
he’s done. The word is also used loosely as
a general form of address for acquaintances
and strangers. “G’day mate”, “How ya goin’,
mate?” … etc.
This gets to the heart of it, and illustrates the problem of it. When used to
refer to another in the third person, mate
is a word which carries the stamp of genuine intimacy. This is the sense which only
Australian English gives it. But in casual
use as a mode of address it carries no
claim to special affection, just a carefree
assertion of social equality. Perhaps this
is why it sounds oddly unfit on the lips of
politicians. When politicians say mate to
News and Views
a member of the public (generally during
an election campaign, typically in a factory where they affect cheerful interest
in obscure industrial processes and a hard
hat) it is obvious that the word carries
neither a bond of intimacy nor any genuine sense of equality: the politician could
not bear to work there, and the workers
look at the politician with the curiosity
reserved for members of an alien species.
When push comes to shove, Australian
politicians wish to be seen as egalitarian,
even if it is a sham for some of them.
Little wonder that the strange directive in
Parliament House was withdrawn within
24 hours. It was just un-Australian.
********
There is another use of mate which has
nothing to do with friendship. A game of
chess ends with the statement Mate or (in
full) Checkmate. The expression comes
from Arabic Shah mat — the King dies.
Shah is immediately familiar as a reference to the ruler, and this is why, at appropriate times, a player says check: it is a
warning that the opposing King (Shah)
is threatened. By an odd coincidence, an
archaic meaning of checkmate was an
equal in a contest, a rival, match; an equal
in power or rank. OED2 cites this usage
in examples between 1509 and 1651. In
this obsolete sense, it is synonymous with
mate in its ordinary sense.
Chess was called chatrang in old
Persian, from the Sanskrit chaturanga,
literally “the four angas or members of an
army” (elephants, horses, chariots, footsoldiers). It first emerged in something
approximating its modern form in the
6th century AD, in India. It spread rapidly
through the middle east. Muslims brought
it to Spain in the 10th century, and a chess
set dating from the 11th century was discovered in the Hebrides in 1831. Although
universally popular for a long time, and
called “the Royal game” since the 15th
century, it was banned for a time by King
Louis IX, in 1254.
Julian Burnside
Verbatim
‘Sprouting’ Big Children
County Court
24 May 2005
Coram: Wood J
R. v Rigoli
N. Crafti for V. Rigoli
S. Kennedy for P. Rigoli
P. Tehan QC for L.J. Rigoli
Bruce Charles Adams sworn and examined.
Mr Silbert: Mr Adams, is your full name
Bruce Charles Adams?
Adams: It is, yes.
Mr Silbert: What is your occupation?
Adams: Brussels sprout vegetable
grower.
Mr Silbert: Are you co-director of Adams
Farm Services Pty Ltd?
Adams: I am, yes.
Mr Silbert: Does that trade as Adams
Farms?
Adams: No, we’ve just changed it, it’s
actually Adams Farms Pty Ltd.
Mr Silbert: Is the main business conducted by you the growing and distribution of brussels sprouts?
Adams: Yes, it is.
Mr Silbert: How long have you been
involved in that, Mr Adams?
Adams: About 30 years.
Mr Silbert: Do you produce sprouts for
the local, interstate and overseas market?
Adams: That is correct.
Mr Crafti: I just want to ask one final
question because I can’t resist asking it.
Do you realise the trauma you’re caused
to little children by the growing of brussels sprouts over the last 20 years?
Adams: Is this off the record? Those little
children are now big children. The health
food of the nation.
‘Seized’ Representative
Attending Mediation
the prospect of a representative of your
client from overseas as well as the insurer
having actual conduct. Could you please
update me on these issues?
Serious Injury
Application
17 December 2002
Tasevski v Gilbertsons P/L
Mr G. Colquhoun for Plaintiff
Mr J. Ruskin QC with A. Moulds for
Defendant
Mr Colquhoun: My learned friend
seemed to make, I would contend, a fairly
slight attack on the plaintiff in respect
of his residual capacity for employment.
The defendant’s court book does include
a vocational assessment at pages 95 to 98
of the defendant’s court book. The report
went through the employment history, the
pluses and minuses for this man and went
through a number of factors and they
were low motivation regarding return to
employment, advanced age — a man who
was then about 55 — which I tend to take
personal exception to, although I haven’t
quite reached that milestone. I think my
learned friend Mr Moulds just said look at
Mr Ruskin, if Your Honour pleases.
His Honour: A mere child, Mr Colquhoun,
a mere child.
Mr Colquhoun: If Your Honour pleases.
Low level of English skills, lack of transferable skills, personal belief and confidence
in his ability to work in another vocation.
His Honour: Are we still talking about Mr
Ruskin or have we now moved to someone
else?
Mr Colquhoun: I think the serious injury
is bringing my learned friend Mr Ruskin
back to court every day, Your Honour,
day in and day out. On the following page,
however, “Recommendations”, there are
no recommendation arising, so there’s …
Email dated 5 August 2005 from partners
in major Melbourne law firm:
I would also like to agree on personnel who will be attending the mediation
on behalf of all parties. I propose to have
my underwriter there together with a
representative who will be seized and
able to take decisions. We did discuss
53
News and Views
A Letter from America
Retirement of Justice Sandra Day O’Connor from the US Supreme Court
A wise old man and a wise old woman reach the same conclusion*
Peter Vickery QC
J
USTICE Sandra Day O’Connor, with
the delivery of a three-sentence letter
to the White House on 1 July 2005,
unexpectedly announced her retirement
as an Associate Justice of the Supreme
Court of the United States. She was the
first woman ever to become a member of
the Court. Her appointment by President
Ronald Reagan in 1981 was confirmed
unanimously by the Senate, and marking
the significance of the occasion, the Court
abandoned its formal use of “Mr Justice”
as the form of address, opting for the
simpler and gender-neutral, “Justice”. She
contributed to a leap in Federal judicial
appointments for women in the United
States.
Justice O’Connor maintained a pivotal
position in a precariously balanced and
ideologically polarized Court for nearly
a quarter of a century. She often delivered the deciding vote in 5–4 decisions
dealing with some of the most important
and contentious public issues of the day.
She retired from a court presided over
by William H. Rehnquist, Chief Justice
of the United States.1 A fellow member
of the Rehnquist court, Justice Antonin
Scalia, said in a statement on 1 July, “The
statistics show that during her tenure she
shaped the jurisprudence of this Court
more than any other Associate Justice.”
A striking example of her ascendancy,
and indeed its controversial role in shaping recent world events, is provided by
the case determined by the Supreme
Court on 12 December 2000 when Justice
O’Connor joined with four other justices
to decide the 2000 presidential election in
favour of George W. Bush (Bush v. Gore).2
Never before had a court of the United
*A phrase often cited by Justice O’Connor. See
for example: “Portia’s Progress” (1991) 66 New
York University L R 1546 at 1558. The phrase
has been attributed to Justice Jeanne Coyne of
the Minnesota Supreme Court.
54
Justice Sandra Day O’Connor.
States been called upon to determine the
result of an election at this level. It should
be noted that the Court was careful not to
over extend its critical role in deciding the
political outcome by specifically confining
the decision to the particular facts before
the Court, the majority cautioning with
the observation: “Our consideration is
limited to the present circumstances, for
the problem of equal protection in election processes generally presents many
complexities.”
Since her appointment, Justice
O’Connor became one of the most keenly
observed justices on the Court. Initially,
most commentators identified her as
part of the Court’s conservative faction.
However, within a few terms, Justice
O’Connor developed the confidence to
emerge from the Rehnquist shadow, and
implant her unique “brand” on the decisions of the Court. Although it is fair to say
that she generally sided with the conservatives, she would often pen a concurrent
opinion which sought to narrow the scope
of the majority opinion, or would adopt a
classically liberal stance in dissent from
the conservative view.
The pointer on the notional “JudgeMeter” settling on “moderate conservative”, she approached her task, not
with the objective of reverting to the
Jeffersonian ideals of the 18th century
or creating strikingly new constitutional
principle, but rather with the object of
defining law which would be practical,
workable and readily understandable to
the American people. As stated by Eugene
Volokh, a former law clerk to Justice
O’Connor who now teaches constitutional
law at UCLA, “Justice O’Connor’s view
was that the work of the law is making the
law work”. Justice O’Connor did not find
comfort in the concept of the rule of law
as being “the law of rules”. As she stated
in a dissenting opinion in 2004 in a case in
which liberal and conservative members
struck down state sentencing guidelines
as unconstitutional, “If indeed a choice is
to be made between adopting a balanced
case-by-case approach … and adopting a
rigid rule that destroys everything in its
path, I will choose the former.”
Although it is perhaps difficult to define
her core judicial philosophy, the hallmark
of Justice O’Connor’s judicial approach
may be described as “judicial minimalism” — deciding cases pragmatically by
no more law than was necessary to deal
with the particular set of facts before her.
This maximized the opportunity to keep
options open for the future, particularly
when supported by the use of well placed
qualifications and exceptions which could
be picked up and developed in later cases
when different facts and circumstances
might arise for decision.
She was elevated to the Supreme Court
presided over by Chief Justice Warren E.
Burger from a middle-level appellate
court in Arizona. This was a court situated below the Arizona Supreme Court,
the highest appellate court of that State
— an indicator of the relative rarity of well
credentialed women lawyers at the time.
Her judicial career on the bench of the US
federal Supreme Court has been hailed
as opening up a set of opportunities for
women that would not have existed without her and marks notable change during
that period.
Many observers of the Court have
speculated that the roots of Justice
O’Connor’s judicial pragmatism can be
found in her remarkable personal history.
She was born in El Paso, Texas, and grew
up as a self-described “simple cowgirl”
working a desolate Arizona cattle ranch
owned by her parents, named with all the
character and style of a Reagan Hollywood
western — “the Lazy B”. In reflecting on
her earliest ambitions she said: “I wanted
to be a cattle rancher when I was young,
because it was what I knew and I loved it.”
This was in spite of what appeared to be
a difficult and lonely life on the ranch in
her early childhood. The ranch itself was
not supplied with electricity or running
water until Justice O’Connor was seven,
and with the nearest neighbours living
over 40 kilometres away, the family spent
most of their days in complete isolation.
By all accounts she read profusely in her
early years, and was then sent away to live
with her maternal grandmother in El Paso
for formal schooling. She attributes much
of her later success to her grandmother’s
positive influence.
Justice O’Connor attended Stanford
University, where she majored in economics graduating in 1950, initially with
a view to managing the family property.
Serendipitously, a legal dispute over her
family’s ranch stirred her interest in law
sufficient to encourage her to enroll in the
Stanford Law School. She continued at
Stanford for her law studies, graduating
in two years (instead of the customary
three), serving on the Law Review, and
finishing third out of a class of 102 (first
in the class was William H. Rehnquist who
later became the Chief Justice).
Her professional life was initially confined by the all too familiar inhibitors to
female advancement. A five-year interruption to private practice to have children
was compounded by discrimination from
a male-dominated profession in which
women of her day were fortunate to obtain
job offers, let alone judicial appointments.
Justice O’Connor personally experienced
the refusal of law firms to employ her as
a lawyer in the early 1950s following her
graduation from the Stanford Law School,
in spite of her exceptional grades. She
was, however, offered a job as a secretary.
Undaunted, she turned to the public service, obtaining her first legal job at the local
county attorney’s office, taking a position
as Deputy County Attorney of San Mateo
County, California from 1952–53 — a job
she secured by offering to work initially
for no pay.
The issue of a replacement for Justice
O’Connor has already given rise to a
“fourth of July” political furore. Her retire-
ess combined with the central position
occupied by the US Supreme Court in the
governance of the country, guarantees
that the appointments will be highly politicized and the subject of exhaustive public
scrutiny, with little guidance as to the outcome.3 The Republicans, Democrats and
other political groups have mobilized for
the campaign ahead, which remarkably
includes advertising in the mass media.
There is a dark moment in the film
“Lawrence of Arabia” when, half way
into the longest desert trek he’s ever
attempted, our hero drops his Mark III
The Rehnquist Court. Rear: Justices Ruth Ginsburg; David Souter; Clarence
Thomas; Stephen Breyer. Front: Justices Antonin Scalia; John Paul Stevens;
Chief Justice William H. Rehnquist (dec’d 3/9/2005); Justices Sandra O’Connor
(ret. 1/7/2005); and Anthony Kennedy.
Cover: The Majesty of the Law:
Reflections of a Supreme Court Justice
(Random House)
ment has left only one remaining woman
on the Supreme Court, Justice Ruth
Ginsburg, and the situation has recently
been compounded by the need to appoint
a new Chief Justice.
The President’s nominations must
be approved by the Senate. This proc-
service compass. The compass enables
the navigator to know precisely where
the navigator is and where the navigator is
going — something for which the French
require philosophy and the Americans
psychotherapy. It is to be hoped that our
American friends do not delay too long in
finding the Mark III and restoring equilibrium to the legal polity.
Justice O’Connor has written two
books. The first book, Lazy B: Growing
Up On A Cattle Ranch in the American
Southwest, recounts her early life lessons of rugged self-reliance and a simple love of the outdoors. The second
of her two books, The Majesty of the
Law: Reflections of a Supreme Court
Justice, describes her quarter century
as a Supreme Court justice. She makes
mention of the mail alone, upon her
appointment, as being a huge burden.
As the Court’s first woman justice, she
received many letters of encouragement
— there were also plenty of messages
from detractors who questioned whether
it was appropriate for a woman to serve
55
in the nation’s highest court. She devotes
much of her latest book to discussing the
subject of women in the legal profession
and in American society.
Permit me to conclude with three
selected extracts from recent writings
of Justice Sandra Day O’Connor which
provide some insight into her work — the
first demonstrating remarkable foresight
in dealing with future race relations
(arising from the University of Michigan’s
law school race-based affirmative action
program); the second illustrating a depth
of understanding on the principles of
the independence of the judiciary and
the rule of law; and the third concerned
with striking the delicate balance between
national security and individual liberty in
the context of the threat of modern terrorism.
The first extract is from her 2003
majority opinion in Grutter v Bollinger,
which determined that public universities
in America, at least for the time being,
can take race into account in affirmative
action admissions policies — however,
as she observed, this approach may be
short-lived:
We have repeatedly acknowledged the overriding importance of preparing students for
work and citizenship, describing education
as pivotal to “sustaining our political and
cultural heritage” with a fundamental role
in maintaining the fabric of society. This
court has long recognized that “education
is the very foundation of good citizenship.”
For this reason, the diffusion of knowledge
and opportunity through public institutions
of higher education must be accessible to
all individuals regardless of race or ethnicity …
We take the law school at its word that
it would “like nothing better than to find a
race-neutral admissions formula” and will
terminate its race-conscious admissions
program as soon as possible. It has been 25
years since Justice Powell first approved of
race to further an interest in student body
diversity in the context of public higher
education. Since that time, the number of
minority applicants with high grades and
test scores has indeed increased. We expect
that 25 years from now, the use of racial
preferences will no longer be necessary to
further the interest approved today.
The second extract is from an address
delivered by Justice O’Connor in opening
the Arab Judicial Forum in the Kingdom
of Bahrain, September 2003:
Alexander Hamilton, one of the Framers
56
of the United States Constitution, wrote
in The Federalist No. 78 to defend the
role of the judiciary in the constitutional
structure. He emphasized that “ ‘there is
no liberty, if the power of judging be not
separated from the legislative and executive powers.’ … [L]iberty can have nothing
to fear from the judiciary alone, but would
have every thing to fear from its union with
either of the other departments.” Hamilton’s insight transcends the differences
between nations’ judicial systems. For only
with independence can the reality and the
appearance of zealous adherence to the
Rule of Law be guaranteed to the people.
As former US President Woodrow Wilson
wrote, government “keeps its promises, or
does not keep them, in its courts. For the
individual, therefore, … the struggle for
constitutional government is a struggle for
good laws, indeed, but also for intelligent,
independent, and impartial courts.” As
we embark today on the work of this
Judicial Forum, I hope that we shall keep
in mind the importance of independence
to the effective functioning of the judicial
branch.
The third and most recent extract is
from her 2004 majority opinion in Hamdi
v Rumsfeld, which ruled that a citizen
of the United States seized by American
forces in the Afghanistan theatre of conflict could challenge his detention in US
courts:
We have long since made clear that a state
of war is not a blank check for the President
when it comes to the rights of the Nation’s
citizens … [It] would turn our system of
checks and balances on its head to suggest
that a citizen could not make his way to
court with a challenge to the factual basis
for his detention by his government, simply
because the Executive opposes making
available such a challenge …
Any process in which the executive’s
factual assertions go wholly unchallenged
or are simply presumed correct without
any opportunity for the alleged combatant
to demonstrate otherwise falls constitutionally short.
… We have no reason to doubt that
courts faced with these sensitive matters
will pay proper heed both to the matters
of national security that might arise in an
individual case and to the constitutional
limitations safeguarding essential liberties
that remain vibrant even in times of security concerns.
In the light of these observations in
Hamdi v Rumsfeld, the need for law to
accommodate social change recognized in
Grutter v Bollinger, and the critical role of
an independent judiciary in securing basic
freedoms cited by Justice O’Connor in the
Arab Judicial Forum, one is driven to consider the plight of the Australian, David
Hicks. He appears to have been seized by
US forces in circumstances remarkably
similar to the American citizen, Mr Hamdi,
yet is facing criminal prosecution before a
tribunal devised and administered by his
accusers from the executive arm.
Justice O’Connor has provided a legacy
of immediate relevance for Australians.
Whatever the outcome of the process,
Mr Hicks should not be abandoned — he
is deserving of a fair trial before a court
of law presided over by an independent judge. We ought not be complicit in
accepting less.
The building housing the US Supreme
Court is situated in the heart of the nation
facing Capitol Hill in Washington DC, physically separated by some distance from the
White House. “The Republic endures and
this is the symbol of its faith” — so said
Chief Justice Charles Evans Hughes in laying the cornerstone on 13 October, 1932.
It is an imposing edifice. Sixteen marble
columns at the main entrance support
the pediment and draw the eye upwards
to the architrave above. Incised into the
stone are the simple words “Equal Justice
Under Law”. They surely are there to sustain a fundamental principle of democratic
society, and not to witness its demise.
Notes
1. William H. Rehnquist, the 16th Chief Justice of the United States, died in office on
3 September 2005 at his home in Arlington,
Virginia. The Chief Justice battled thyroid
cancer since being diagnosed last October
and continued to perform his duties on the
Court until a precipitous recent decline
in his health. Chief Justice Rehnquist was
appointed to the Supreme Court as an Associate Justice in 1971 by President Nixon and
took his seat on 7 January 1972. He was
elevated to Chief Justice by President Reagan in 1986.
2. Justice O’Connor joined Chief Justice Rehnquist, and Associate Justices Scalia, Thomas
and Kennedy to stop a manual recount of
votes in Florida, thereby guaranteeing the
election of George W. Bush as President.
3. President Bush on 5 September 2005 nominated the conservative Judge John Roberts,
of the Federal DC Circuit Court of Appeals,
to be Chief Justice of the United States. As at
19 September there has been no presidential
nomination to replace Justice O’Connor.
Sport/Football
It’s a Fine Line Between
Pleasure and Pain
The victorious Bar Team with coach Tommy Hafey.
S
OME of us might have lost briefs as a
result but there was no denying the
pride and excitement experienced
following our inspiring win. It started as
a game of footy to raise some money for
charity and evolved into a fiercely fought
match between Barristers and Solicitors,
officially the “RecLink Legal Football
Challenge Cup”, on 25 June 2005 at Punt
Road Oval. Some 250 spectators saw the
Solicitors coached by legend Allan Jeans
while the Bar had the privilege of Tommy
Hafey and his words of wisdom before,
during and after the match.
In a situation not dissimilar to receiving a brief on the morning of the hearing,
we entered battle with an abundance of
enthusiasm, experience, excitement and
of course ego. Whilst our relatively youthful opponents possessed more speed and
endurance (as well as couple of former
AFL players), there was, in our view, no
substitute for a big interchange bench.
In a last minute flurry of interest, akin
to those “Christmas Eve” bail applications,
the Bar numbers grew from about 15 to a
playing list of about 35 by kick off.
In comparison to the Solicitors, the Bar
had a restricted pool of individuals to draw
from to field a competitive team, in terms
of both numbers and youth. By consent
therefore, the Bar was loosely expanded
to include relatives of members of the Bar
and Clerks. Fortunately, this meant that
we were able to recruit some young legs
and talent to combine with the experience
of champions from days gone by, such as
Mordy Bromberg.
At one end of the spectrum was John
Dever, a “senior” member of the team,
while at the other end were the Dever
boys whose combined age was still less
than the average age of the Bar team. A
couple of boys from out Ringwood way,
courtesy of a distant relative at the Bar,
provided some talent and size, one being
big “Chico” who gave the team a real focal
point by dominating at full forward.
Proving that genes account for something, Ben Rozenes took control of proceedings early on, directing play from
the centre, and kicked the first goal of the
game. The most “senior” member of our
team, Phil Kennon, was a solid performer
all day and provided stiff competition to
opponents who were about half his age.
For his efforts, he was rewarded with the
most courageous player award.
It was an exceptional team effort, particularly in circumstances where our first
57
The performance of the Bar Team was
appreciated by fans old and young.
Tommy Hafey provides some insightful
words of motivation.
To the victor go the spoils — Matt Fisher and Tommy Hafey hold the “RecLink
Legal Football Challenge Cup” aloft.
game as a team was on the day (our first
“training run” together was during the
pre-match warm-up). On at least a few
occasions, team-mates did not even know
the name of the person they were kicking
the ball to or who was kicking it to them.
Some performances are worthy of mention. The best player award was presented
to Justin Brereton who was outstanding
and dominated whenever the ball was
close to him. Tim Bourke was terrific in
the ruck and was more than competitive
against former Tiger Brendan Gale.
Dan Christie and James Gates added
power and strength running the ball out
of defence. Jamie Gorton, Chris Winneke,
Paul Santamaria and Steven Grahame
— the latter two finding themselves reluctantly as “senior” members of the team
— were fine contributors without whom
victory would not have been ours.
Interestingly, Simon Northeast found
himself playing for the Bar. His was a good
game and it is thought that Tommy Hafey
had a little something to do with his playing persuasion.
More than footy was the winner. In
excess of $8000 was raised for RecLink,
which will enable them to organise sporting and recreational activities for those in
our community who are less fortunate.
Special thanks should go to Michael Green
58
for his encouragement, financial support and assistance in organising certain
aspects of the game and to John Dever for
his support both financially and physically.
The exact score at the end of the day is
not that important (victory being its own
reward), although the final siren saw the
Bar win by three goals, a significant margin in a low scoring affair.
This match was the first between the
two arms of the profession in about a
decade. It is hoped that the success of this
game will translate into an annual event.
Given the obvious sadness and disappointment emanating from our opponents
at the conclusion, we can expect to face
substantial opposition next time. While
it’s not expected to be a big pre-season
over summer, more structured training
sessions are planned in the lead-up to the
2006 match. Our gratitiude goes to those
volunteers who gave of their time and
effort in organising and/or working on the
day, particularly Tommy Hafey.
Without such support, the day would
not have been the success it undoubtedly
was.
The position of captain “came my way”
probably more because of my part on
the organizing committee than any other
sensible basis. It was a role that provided
me with the opportunity to be part of a
group of individuals who came together as
a team, and, on a warm winter afternoon,
displayed the sort of camaraderie and
fighting spirit that is legendary at the Bar.
Matt Fisher
The Bar Team — exhausted but elated after an inspirational victory.
Lawyer’s Bookshelf
The Oxford Companion
to the Supreme Court of
the United States
(2nd edn)
By Kermit L. Hall
Published by Oxford University
Press, 2005
A
S its title suggests, this recent offering
from OUP is for those who would like
to know more about the history, personalities and role of this great common law
court.
In very large measure the book satisfies this expectation with the breadth of
its political, legal and biographical sweep
through the history of the Supreme Court
of the United States.
In much the same way as OUP’s
Companion to the High Court of
Australia excites with the promise of a
revealing glimpse behind the scenes of the
third arm of government, this book takes
the reader into the judicial antechamber
and provides a seat at the justices’ conference table. The ritual of the collegiate
handshakes before each conference probably says more about the institution itself
than a minute textual analysis (so beloved
of socio-legal academics) of the published
decisions.
The pen portraits of the justices, past
and present are revealing, but in some
instances pedestrian. The great Oliver
Wendell Holmes never in his life read a
newspaper. This is not mentioned. Nor is
his most famous aphorism, “The life of the
law has not been logic; it has been experience.” Similarly, Justice Robert Jackson’s
faintly absurd and even trivializing opening remarks as Chief Counsel at the
Nuremburg War Crimes trials do not rate
a mention. The biographical aspect of the
book could have benefited from an infusion of quirkiness. It is, after all, a history
of the Court rather than a legal textbook.
That said, the Trivia section of the
book, whilst brief, does contain the
unexpected. For example, the writer was
pleased to note that twenty quill pens
are placed at the Bar tables on each and
every day the Court is in session and
that US government attorneys appearing
before the Court adhere to the tradition
of wearing “morning clothes (sic)”. The
book describes in considerable detail the
tradition of the judicial conference and
how, shortly before the conference begins,
the justices assemble in the antechamber
at the sound of a buzzer. Who it is who
presses this buzzer is mysteriously left
unexplained. To this reviewer, it appears
to be a role of the greatest significance in
American jurisprudential firmament: no
buzzer, no conference, no nothing. Quis
custodiet custodies ipsos?
The history of the court and of its
justices provides an understanding of
the way in which the court operates and
why the opinions of justices through the
years very often reflected their personal
traits and predispositions. The tenure and
approach of Justice William O. Douglas
reminds one of Starke’s time on the High
Court of Australia.
It is a wonderful book and a joy to read
or, perhaps more accurately, to dip into.
For those who are interested to learn
and understand more of such a significant institution in the Western world, it
is a splendid addition to the bookshelf.
It should be recommended reading for
David Hicks’ father!
The reviewer looks forward with great
anticipation to a similar Companion
Volume to the House of Lords and Court
of Appeal.
Neil McPhee
Opinion
of the Solicitor-General regarding
the claim of the Government of
Victoria to the Territory (known
as the Riverina) lying between the
Murray and Murrumbidgee Rivers,
together with maps showing the
course of the River Murray
William Applegate Gullick
Government Printer, Sydney, 1912
18 pp including an Appendix of
17 fold-out maps of south-eastern
Australia showing the history of
discovery of the course of the River
Murray.
7s. 6d. at time of publication (1912),
“several hundred dollars” at time of
acquisition (2004) by the Education
Resource Centre Library of the
University of Melbourne.
I
T is the serendipitous reward of the
researcher to happen upon material
unrelated to the current research being
undertaken but which is of more than
passing interest. Unfortunately, the exigencies of the current research require its
temporary abandonment coupled with an
intent to return and further explore this
peripheral material at a more convenient
time. Thus it was my experience to be
investigating the views of the Victorian
Solicitors General regarding the jurisdiction over the River Murray in the tristate area where the states of Victoria,
South Australia, and New South Wales
abut (that is, the Mildura-Renmark area).
The search engine spat out this particular
pamphlet that had only recently been
included in the University of Melbourne
Library catalogue after its acquisition last
year.
In 1911 the Acting Premier of Victoria
wrote to his New South Wales counterpart
asserting Victorian sovereignty over the
land lying to the south of the Murrumbidgee
River and a straight line from the source
of that river (near Nimmitabel in NSW) to
Cape Howe (the present coastal boundary point). If correct, the Australian
Alps, most of the Australian Capital
Territory (but not the City of Canberra)
and Cooma would be within Victoria and
the towns of Balranald, Hay, Narrandera,
Wagga Wagga, and Gundagai would be
border towns.
This was the third time Victoria had
raised the issue: in 1906 the legal advice
to the Victorian Government concluded
that: “Victoria has not any valid claim
to insist now that the proper boundary between Victoria and NSW is a line
drawn from Cape Howe to the source
of the Murrumbidgee.” The subject was
dropped until the Premier of Victoria,
Sir Thomas Bent, took it up again in 1908
initiating discussions between the states
which petered out and remained dormant
until the most recent claim by the Acting
Premier in 1911. It was a time of state
assertion of disputed territory as South
Australia was part way through its (ultimately unsuccessful) claim in the High
Court of Australia (12 CLR 667, 1911 and
thereafter on appeal to the Privy Council
18 CLR 115, 1914; [1914] AC 283) that its
present border with Victoria should be
“shifted” some two and a quarter miles (or
3.6 km) eastward.
The genesis of the Victorian claim lay
in an 1851 letter written by Sir Thomas
Mitchell pointing out that the boundary described by the 1850 Imperial Act
(establishing the Colony of Victoria) ran
from Cape Howe to the Murrumbidgee
source of the Murray and thence along the
Murrumbidgee to the Murray, and thence
along the Murray to the SA border. As
Surveyor-General of NSW both before and
after the establishment of the Port Phillip
District of the Colony of New South Wales
as the independent Colony of Victoria (in
1851) surely Sir Thomas Mitchell was in a
position to know!
59
In response the NSW Solicitor-General,
Walter Bevan, prepared an opinion which
was ordered by the NSW Legislative
Assembly to be printed and published.
The NSW solicitor’s opinion was reliant upon four threads which, in apparently decreasing importance, included an
analysis of the 1850 statute defining the
proposed border (“… a line drawn from
Cape Howe to the nearest source of the
River Murray and thence by the course of
that river to the eastern boundary of the
Colony of South Australia” — the solicitor’s conclusion being that “that river”
could only be referenced to the preceding nominated river, that is, the River
Murray).
Bevan then sought to show that
Mitchell’s 1851 interpretation was in
error. In the course of the exploration
westward of the new colony from Sydney,
the River Murrumbidgee was fully known
while knowledge of the Murray upstream
from the confluence of the two rivers was
scant (it being known then as the Upper
Murray or the River Hume). Mitchell’s
interpretation was founded upon the
Murrumbidgee being a known source
(one of several) of the Murray whereas
the source of the Murray proper was yet
to be found. However, at the time of the
1850 statute this was no longer the case,
as was demonstrated by the appendix
of maps dating from the 1820s through
the 1850s, many from the office of the
Surveyor-General and bearing Mitchell’s
initials, indicating that he was aware of
their import, and demonstrating that the
course of the upper reaches of the Murray
were known at this time.
Further, the solicitor traced the history of the proposed border and the
Port Phillip District. Whereas the 1850
border was in terms of westwards from
Cape Howe, the earlier manifestations
were eastward from the SA border. It is
possible to construe the 1850 definition
as a straight line from Cape Howe to the
nearest source of the Murray (being the
Murrumbidgee) and thence along that
river (the Murrumbidgee) to where the
Murrumbidgee ceases (where it enters the
Murray) and thence (along the Murray) to
the SA border. In the opposite direction,
from the SA border along the Murray to its
source and thence to Cape Howe leaves
little room for an interpretation utilising
the course of the Murrumbidgee and its
source.
A contemporary history of the political lobbying for a Murrumbidgee border
(premised upon the Riverina being better
governed from Melbourne than Sydney
60
because of the closer proximity of the
former) also supported the solicitor’s
opinion. Had the Imperial Parliament
legislated for a Murrumbidgee border
it is difficult to reconcile this intended
border with the rueful disappointment at
the failure of their lobbying efforts by its
proponents.
The value of the NSW solicitor’s opinion
and the decision of the NSW parliament to
print (and widely publish) that opinion is
demonstrated by the fact that the claim of
Victoria was not proceeded with although
Cumbrae-Stewart (1933, reprinted in the
University of Queensland Law Journal
1965), refers to a civil libel action, Ogier
v Norton (ca 1903), where it was contended that the Murrumbidgee and
not the Murray was the true boundary
between NSW and Victoria.
Briefless
(who has now satisfied a long-held
ambition of having the place name
Nimmitabel included in his published
writings)
Complications: a
Surgeon’s Notes on an
Imperfect Science
By Atul Gawande
Metropolitan Books, Henry Holt &
Coy LLC, New York, 2002
269 pages, no index.
US$24
T
HE writer is a surgeon and staff writer
for the New Yorker magazine. He is
also a teaching professor at the Harvard
Medical School. He is one of several
New England surgeon/teacher/essayists, for example, Sherwin Nuland, of
Yale University Medical School (How we
die, 1994; and The Wisdom of the
Body: How we live, 1997), and Jerome
Groopman (The Measure of our
Days, 1998; Second Opinions, 2000;
and The Anatomy of Hope, 2003) also of
Harvard. All three write well and knowledgably and this reader would expect a
similar high standard in their practice of
surgery.
Gawande’s research interest is in
improving surgical care in the US and
developing countries and forms the basis
of this collection of essays which have previously been published in the New Yorker
and the online internet “magazine” Slate.
I can recall having previously read several
of these articles in the New Yorker. While
this volume lacks an index it does have
chapter notes, allowing the reader to
delve deeper if desirous of doing so.
Gawande investigates why it is that
things go wrong — it is not because there
was no need for the word “iatrogenic” that
it was coined: this is where the medical
care is indeed worse than the disease. An
interesting observation is that according
to research cited by the author medical
malpractice suits do not reduce medical
error rates (this is a contradiction of the
rationale cited by plaintiff trial lawyers
that tort litigation is the only effective
learning process for otherwise indifferent tortfeasors). Added to that, fewer
than 2 per cent of patients who do have
a cause of action actually litigate. And, of
the medical malpractice suits filed, only a
small minority are held to be victims of
negligent care, and the best guide to ultimate success in litigation is the severity of
the patient’s adverse outcome regardless
of causation.
The medical profession has borrowed
from other professions in seeking to
improve standards — immunity from punishment for voluntary and honest reporting of “incidents” and flight simulators
from the aviation industry and “human
factor” engineering leading to standardised controls for medical machinery. A
recent innovation is the “patient simulator” allowing the surgeon to practise, to
experiment, to hone surgical skills or to
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rehearse a ticklish operation in advance.
Previously this could only be accomplished on real live patients.
The common thread of these essays is
to show the limitations of modern medicine and its practitioners to repair our
diseased and damaged bodies. There are
14 articles under three sections headed
“Fallibility”, “Mystery” and “Uncertainty”.
In truth, these divisions are porous and
many of the articles could have been
included under any or all of these headings.
Fallibility looks at the limitations of the
individual practitioners, those inherent in
the training of surgeons (“see one, do one,
teach one”), their continuing education
and the maintenance and improvement
of their skills (including learning from
their errors, both their own and those
of their colleagues) and the easy road to
incompetence by way of drug and alcohol
abuse. For completeness I would have
liked Gawande to have included the issue
of the once competent surgeon who has
postponed retirement indefinitely and is
no longer able to recognise that their competence has deteriorated and now poses
a threat to their patients. Readers might
like to consider that their own errors may
permit our “patients” to appeal an adverse
outcome and the fact that we are under
the scrutiny of our fellow practitioners
and the bench. Of course, this does not
solve the ticklish problem of informing
and convincing the elderly practitioner,
medical or legal, that now is time to be
tending the rose garden.
Thus, while “Fallibility” covers the
limitations of individual practitioners, the
next division “Mystery” is concerned with
that which is unknown to the profession.
Despite the marvels of modern medicine
there still remain areas where the best the
profession can offer is to stand aside and
wait and watch and hope. Medicine is not
an exact science and not every malady has
a remedy and not every adverse outcome
is evidence of malpractice deserving of
compensation.
The final section “Uncertainty” deals
with the necessity of proceeding despite
imperfect or incomplete knowledge:
decision making under uncertainty. This
area has led to a recent “Nobel laureate”
in Economics for Daniel Kahneman and
should be familiar to Bar News readers.
It is common experience to us and concerns a judge and jury being called upon
to determine a factual happening despite
their having no direct knowledge whatsoever of the incident being enquired into,
for example, the state of the traffic light
facing the defendant immediately prior
to the accident. However, they are called
upon to proceed upon the basis of the
incomplete information allowed them and
subject to the filtering process of the rules
of evidence and the tactics of the parties
and their advocates. Thankfully they are
permitted to found their decisions on “the
balance of probability” or “beyond reasonable doubt” (whatever that means) and
are not required to try for beyond doubt
or without doubt. Further, the surgeon’s
decision making under uncertainty may
not allow for unhurried thoughtful contemplation because of the urgent need for
immediate action. Consider the difficulty
created by the apparent urgency of a
simple non-urgent problem with a simple
solution! As the old saw goes — hindsight
has 20–20 vision.
When should the surgeon ignore “intuition” and be guided only by objective
observation? Or vice versa? What about
the serendipity of fate where the visiting
surgeon with an interest in an obscure
area of practice has altered the timing and
order of the routine visiting to his local
hospitals (because of weekend guests)
and just happens to be on hand when
this expertise is most urgently needed?
Today’s biopsy that discloses that which
yesterday’s failed to detect? When is it
best to leave well enough alone and leave
nature to its course without interference
(“don’t do something, just stand there!”)?
How does a surgeon know?
Of particular interest is the junction
of the two professions where the practitioners are called upon to determine a
doubtful issue, for example, of child abuse
(particularly where the victim is deceased
or is unable to assist in the determination). Unlike the actors in the legal drama
Gawande permits himself to harbour
doubts. This is of contemporary relevance
given the well publicised reference by the
English Attorney-General allowing the reinvestigation of those mothers convicted
and jailed for the murder of their children
— three mothers have been released so far
and the “expert witness” for the prosecution has been struck off the medical register. In January this year, an article in the
medical journal Lancet finally discredited
the hypotheses of Sir Roy Meadow who
single-handedly devised Munchausen’s
Syndrome By Proxy (MSBP) and the
so-called Meadows’s Law (that infant
apnea/SIDS is in reality infanticide) on
the basis that unexplained infant deaths
are independent of family relations. All
the experts consulted by Gawande conceded these cases do not involve direct
physical evidence, the only basis for
criminal prosecution being a “suspicious”
pattern of otherwise unexplained infant
deaths.
The author brings his lay qualifications
to bear here as a parent who has accompanied his infant daughter to the casualty
ward with a suspicious arm fracture. As
the accompanying parent the author was
grilled by the suspicious medical staff (he
suggests that his social status as a fellow
practitioner assisted in allaying the concerns of his interrogators). He himself has
played the role of the suspicious medico in
an instance of a badly scalded two-month
old boy. Similarly, as a “patient” (and not
as a surgeon), in the essay discussing how
the patient and the practitioner arrive at
the decisions affecting the patient’s care,
he relates the powerlessness felt by him
a fortnight after the premature birth
of his youngest daughter who required
major surgery. Notwithstanding his wellinformed medical credentials the author
surrendered the decision-making to the
attending physicians. The author’s recollections remind me of the Australian
surgeon who, after suffering horrendous
injuries in a car smash, wrote of his
experience as a patient and compared
this experience to his prior conduct as a
surgeon — wearing the other man’s shoes
so to speak.
Let’s hope that juries in personal injuries-medical malpractice cases haven’t
read this book because it places the surgeon as a human undertaking responsibility surrounded by uncertainty and doubt.
Instead of expressing outrage at their ability to stuff things up and sue the bastards
perhaps we should wonder at what they
can accomplish despite the incompleteness of their knowledge.
I shall go out on a limb and suggest
that this volume makes for interesting and
entertaining reading by members in addition to lay readers.
Briefless
Limitations of Actions
— the Australian Law
By Peter Handford
Lawbook Co, 2004
pp: i–lxxxvi; 1-232; Bibliography
233–234; Index 235–244.
L
IMITATIONS of Actions — The
Australian Law provides in a single
volume a comprehensive and up-to-date
exposition of the law relating to the limitations of actions in Australia.
61
As this work is a direct descendant of
the section on limitations found in The
Laws of Australia published in 1994, the
work follows the same format with footnotes at the end of each section.
The author has provided a table setting out causes of action and limitations
in each state which is in turn cross referenced to paragraphs in the text.
There are specific chapters dealing
with general principles such as the running of time and limitations provisions as
they relate to contracts, tort, property law
and specific provisions relevant to admiralty arbitrations and the like. Some “legislation specific” time limits such as those
found in the Civil Aviation (Carriers
Liability) Act 1959 which implements
into Australian law the provisions of the
Warsaw Convention and the time limits
applicable thereunder are not covered in
the text.
Limitations of Actions — The
Australian Law is a timely publication
taking into account case law developments and legislative amendments including changes instituted as part of the state
and federal government’s response to the
so-called “insurance crisis”. This work is
sure to be of practical use to lawyers and
others involved in litigation in Australia.
Although originating in England these
orders have been given a statutory basis
and are now widely invoked in both State
and Federal jurisdictions in Australia.
Indeed, such is the tactical effect of
these types of orders that litigation may
effectively be determined by the making
of these types of orders — an effect the
author aptly describes as “the laws two
nuclear weapons” (from Bank Mellat v
Nikpour (1985)FSR 87(CA)).
The author sets out to state that the current Australian law and practice although
the law in relation to Mareva (freezing)
orders and Anton Piller (search) orders
is still evolving. Accordingly both English
and Australian authorities are highly relevant in these important aspects of legal
practice. The text includes discussion of
cases drawn from a wide variety of jurisdictions including extracts from many first
instance judgments.
This text provides an extensive analysis of the history and development of
Mareva and Anton Piller Orders. There
are specific chapters dealing with the
position of third parties affected by such
orders and chapters on the privilege
against self-incrimination and sanctions
for non compliance with orders.
To the extent that this work is practically focused, the various appendixes
provide much useful material including
extracts of Australian and New Zealand
legislation and court rules together with
several forms of orders made in Australian
cases. The appendixes also contain by
way of adjunct to the Australian materials,
English statutory and court rules materials.
This excellent text will be of great use
to students and practitioners. This work is
sure to find a niche on the bookshelves of
practitioners, many of whom will no doubt
have cause to give thanks for the wealth
of material drawn together in a coherent
manner so as to provide an excellent
practical resource in this important and
technical area of the law.
P.W. Lithgow
P.W. Lithgow
Mareva and Anton Piller
Orders Freezing and
Search Orders
By Peter Biscoe
LexisNexis Butterworths, 2005
Pp: i–xxix; 1–314; Appendixes
315–365; Selected Bibliography
367–66; Index 369–378.
I
N the nearly 30 years since Mareva
Compania Naviera SA v International
Bulk Carriers SA [1975] 2 Lloyds Rep 509
and Anton Piller KG v Manufacturing
Processes Ltd [1976] Ch 55 were decided
in 1975 by the English Court of Appeal,
the use of Mareva and Anton Piller Orders
has become widespread.
62
In the adversary system, truth is best discovered by strong argument on both sides of the question. Lord Eldon
The calling of evidence and the testing of evidence, including expert evidence
is left to the parties. In recent years, research has confirmed the perception
that there are problems with expert evidence including bias, lack of communication, insufficient focus on issues and prolonged, expensive procedures.
There are also issues about competence of some advocates who deal with
expert evidence. The courts and law reform commissions are looking to solve
these problems. The difficulty is in providing solutions which do not undermine the fundamental qualities of the adversary system. Some solutions are
good and some bad.
The conference, conducted by the International Institute of Forensic
Studies, in Broome on 16–19 October 2005, will have a number of experts from
different disciplines, and a number of lawyers explore and discus these issues.
See www.law.monash.edu.au/expertconf
The conference qualifies for CLE points.
Wig cleaning and repair now available at Ludlow’s
146 King Street, Melbourne
Telephone: (03) 9621 1521
Facsimile: (03) 9621 1529
E-mail: [email protected]
Contact: Andrew Tolley or Richard Phan
URL: www.ludlows.com.au

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